James A. Graham
Lectures on the
Legal System of the United States
Foreword
This third edition, like the first two ones, is not aimed to be considered as
a cientifical contribution, but solely a casebook for my students. The
purpose of my classes is to present to Mexican lawyers the American
legal system and surely not to form US lawyers. I focused on what
seemed to me as the most important points to know in order to understand
a legal tradition far different from the Civil law system we are used to.
Due to the geographical proximity, I did also emphazise on cross-border
issues like jurisdiction and Private international law. I do not need to
emphazise that for a complete view of American law, the reader ought to
refer among others to the cited books in the bibliography.
The present work has been updated, and completed with a greater
emphasize on American Conflict of laws, mainly inspired by Richman &
Reynolds’ Understanding Conflict of Laws.
Monterrey, March 2007
I
II
Contents
FOREWORD ...................................................................................I
GENERAL BIBLIOGRAPHY .................................................. VII
INTRODUCTION .......................................................................... 1
PART I – THE CONSTITUTION AND THE FEDERAL
SYSTEM.......................................................................................... 3
Lecture # 1 - The Legislative Power......................................... 5
Lecture # 2 - The Executive Power........................................... 7
Cases and Materials .............................................................. 8
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)
.......................................................................................... 8
Lecture # 3: The Judicial Power ............................................ 15
Lecture # 4: The Separation of Powers .................................. 17
Cases and Materials ............................................................ 18
INS v. CHADHA, 462 U.S. 919 (1983) ......................... 18
UNITED STATES v. NIXON, 418 U.S. 683 (1974) ..... 40
Lecture # 5: The Court’s Main Eras ...................................... 57
PART II – THE BILL OF RIGHTS ........................................... 61
Lecture # 6: The Slavery Question ......................................... 63
Cases and Materials ............................................................ 65
BROWN v. BOARD OF EDUCATION, 347 U.S. 483
(1954).............................................................................. 65
Lecture # 7: Procedural Rights .............................................. 73
Cases and Materials ............................................................ 76
MIRANDA v. ARIZONA, 384 U.S. 436 (1966) ........... 76
Lecture # 8: Substantial Rights ............................................ 107
Section 1: First Amendment ..................................... 107
Section 2: Substantive Due Process.......................... 108
Cases and Materials .......................................................... 110
UNIVERSITY OF CALIFORNIA REGENTS v.
BAKKE, 438 U.S. 265 (1978)...................................... 110
RICHMOND v. J. A. CROSON CO., 488 U.S. 469
(1989)............................................................................ 113
FRONTIERO v. RICHARDSON, 411 U.S. 677 (1973)
...................................................................................... 119
III
SKINNER v. STATE OF OKL. EX REL.
WILLIAMSON, 316 U.S. 535 (1942).......................... 126
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)
...................................................................................... 130
CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990)
...................................................................................... 135
PART III – THE LAW............................................................... 151
Lecture # 9 – Self-government, Law and Democracy .......... 153
Lecture # 10 – International law v. Municipal law .............. 155
Lecture # 11 – Federal law v. State law ............................... 157
Cases and Materials ............................................................. 159
ICJ: AVENA (2004) .................................................... 159
Lecture # 12 Common Law................................................... 221
Section 1 – The Original English System......................... 221
Section 2 – The American System ................................... 222
Cases and Materials .......................................................... 224
JOHN SWIFT V. GEORGE TYSON........................... 224
ERIE R. Co. v. TOMPKINS, 304 U.S. 64 (1938) 304
U.S. 64 .......................................................................... 230
Lecture # 13 – Other Legal Sources..................................... 236
Section 1 - Equity ............................................................. 236
Section 2 – Codification and Uniform Law...................... 236
Section 3 – Doctrine ......................................................... 237
Lecture 14 – The Judge and Case Law................................. 238
Lecture # 15 - The Judge and the Interpretation of Law...... 240
Cases and Materials .......................................................... 243
NATIONAL SOC. OF PROFESSIONAL ENGINEERS
v. US, 435 U.S. 679 (1978) .......................................... 243
HOLY TRINITY CHURCH v. US .............................. 255
UNITED STEELWORKERS OF AMERICA, AFL-CIOCLC v. WEBER, .......................................................... 265
PART IV – COURTS AND LAWYERS .................................. 273
Lecture # 16– Courts ............................................................ 275
Section 1 – State Courts.................................................... 275
Section 2 - Federal Courts ................................................ 276
Cases and Materials .......................................................... 278
IV
President Issues Military Order Detention, Treatment,
and Trial of Certain Non-Citizens in the War Against
Terrorism ...................................................................... 278
Remarks of Chief Justice William H. Rehnquist 100th
Anniversiry Celebration Of the Norfolk and Portsmouth
Bar Association............................................................. 282
Lecture #17 – The Legal Profession..................................... 291
PART V – PROCEEDINGS ...................................................... 293
Lecture #18 – Proceedings ................................................... 295
Section 1 – Civil Lawsuits................................................ 295
Section 2 – Criminal Proceedings .................................... 298
Cases and Materials .......................................................... 300
KADIC v. KARADZIC ................................................ 300
A – Jurisdiction..................................................................... 320
Lecture # 19: Jurisdiction in personam............................... 320
Section 1 – Transactions................................................... 320
Cases and Materials .......................................................... 325
INTERNATIONAL SHOE CO. v. WASHINGTON, 326
U.S. 310 (1945) ............................................................ 325
WORLD-WIDE VOLKSWAGEN CORP. v.
WOODSON, 444 U.S. 286 (1980) ............................... 332
ASAHI METAL INDUSTRY CO. v. SUPERIOR
COURT, 480 U.S. 102 (1987) ...................................... 340
HELICOPTEROS NACIONALES DE COLOMBIA v.
HALL, 466 U.S. 408 (1984)......................................... 350
Section 2 – E-commerce................................................... 356
Cases and Materials .......................................................... 358
ZIPPO MFR. Co v. ZIPPO DOT COM INC, 952 F. Supp.
1119 (W.D. Pa. 1997) ................................................... 358
Section 3 – Torts............................................................... 369
Cases and Materials .......................................................... 371
CALDER v. JONES, 465 U.S. 783 (1984) .................. 371
Lecture # 20: Jurisdiction in rem ......................................... 378
Cases and Materials .......................................................... 379
SHAFFER v. HEITNER, 433 U.S. 186 (1977)............ 379
Lecture # 21 – Subject Matter Jurisdiction .......................... 394
Cases and Materials .......................................................... 396
V
COALITION OF CLERGY, ET AL. v. GEORGE
WALKER BUSH, ET AL. (C.D.Cal., 2002) ............... 396
Lecture # 22: Forum non conveniens ................................... 410
Cases and Materials .......................................................... 413
GULF OIL CORPORATION v. GILBERT, 330 U.S. 501
(1947)............................................................................ 413
PIPER AIRCRAFT CO. v. REYNO, 454 U.S. 235 (1981)
...................................................................................... 418
Lecture # 23 – Exceptions to Jurisdiction ............................ 433
Section 1 - Immunities...................................................... 433
Section 2 – Act of State .................................................... 433
Cases and Materials .......................................................... 436
UNDERHILL v. HERNANDEZ, 168 U.S. 250 (1897)436
BANCO NACIONAL DE CUBA v. SABBATINO, 376
U.S. 398 (1964) ............................................................ 438
B – Private International Law .............................................. 459
Lecture # 24 – Extraterritoriality ......................................... 461
Cases and Materials .......................................................... 465
US v. VERDUGO-URQUIDEZz, 494 U.S. 259 (1990)
...................................................................................... 465
Lecture # 25 – Conflict of Laws............................................ 493
Cases and Materials .......................................................... 496
ALLSTATE INS. CO. v. HAGUE, 449 U.S. 302 (1981)
...................................................................................... 496
Lecture # 26 - Recognition of Foreign Judgments ............... 526
ANNEX ........................................................................................ 528
THE CONSTITUTION .................................................... 528
OF THE UNITED STATES OF AMERICA ................... 528
VI
General Bibliography
The American Legal System
Burnham, Introduction to the Law and Legal System of the United States,
2nd ed, St Paul, Minnesota, West Group, 1999.
Farnsworth, An Introduction to the Legal System of the United States, 3rd
ed, New-York, Oceana Publications, 1996.
Emerson & Hardwicke, Business Law, 3rd ed, New York, Barron, 1997.
Hongju Koh, International Business Transactions in US Courts, 261
RCADI 13 (1996)
LaFave et alii, Criminal Procedure, 4th ed., Thomson West, 2004
Levy, International Litigation, ABA, 2003
About the English Legal System
Kempin, Historical Introduction to Anglo-American Law, St Paul, West
Publishing, 1995
Spencer, Jackson’s machinery of Justice, 8th ed., Cambridge University
Press, 1995
The American Legal System in a comparative approach
Hay, US-Amerikanisches Recht, Muenchen, Ch Beck, 2000
David & Jauffret-Spinosi, Les grands systèmes de droit contemporains,
10 ed., Paris, Dalloz, 1992
Graham, El Derecho internacional privado del comercio electrónico,
Mexico, Themis, 2003.
Graham, Los extranjeros condenados a muerte en los Estados Unidos de
América y sus derechos consulares, Lex Artis, Udem, 2006.
NLCIFT, El derecho de Estados Unidos en torno al comercio y la
inversion, UNAM, 1999.
Lopez Monroy, Sistema jurídico del Common Law, 3ra ed., Porrúa, 2003.
US Conflict of Laws
Cramton & alii, Conflict of Laws, 5th ed, St Paul, West Publishing, 1993
Richman & Reynolds, Understanding Conflict of Laws, 2nd ed., New
York, Matthew Bender and Co, 1995
Rosenberg & alii, Conflict of Laws, New York, Foundation Press,
1996
VII
Weintraub, Commentary on the Conflict of Laws, New York,
Foundation Press, 1986.
VIII
IX
Introduction
There is no need to precise that today American companies are
dominating the world market. And they do take with them American law.
That is the most common practical reason why one should know the legal
system of the United States. Another fact is that half of the countries in
the world have Common law systems or are partially influenced by US
Law. For instance, Mexico adopted numerous UNICTRAL Model laws
that often are heavily inspired by American legal concepts.
Common law countries are obviously the Commonwealth countries1, but
also other countries outside the Commonwealth like Israel have adopted
this kind of legal system, in opposition to Civil code countries. Moreover,
even the latter are more and more influenced by US Law. Thus Brazil
adopted for instance as model the Delaware statute of corporate firms,
besides its Roman-German Civil code. Mexico too is not excempt of the
American influence by adopting numerous UNCITRAL Model laws that
often are based on Common Law concepts. But there is also another
reason to know US law, more precisely in regard to legal engineering and
legal politics. As I already mentioned, there are two main legal systems in
the world: Common law and Civil law. Today a legal system is a
commercial product that is sold and exported. At the time when the
ancient communist countries changed their regime, the question raised
about which new legal system should be implemented. American and
French lawyers jetted to these countries to sell their codes and their knowhow. Today we have such a situation in San Domingo in regard to the
reform of the ancient Code Napoleon. However, even if US Law is mainly
based on Common law, it would be wrong to consider that the knowledge
of the American legal system would mean knowing all the Common law:
there is not one Common law; there are as many Common laws as there
are Common law countries. Nevertheless, the knowledge of the American
system surely facilitates the understanding of other Common law systems.
1
The Commonwealth of Nations (CN), usually known as the Commonwealth, is
a voluntary association of 54 independent sovereign states (2006), the
majority of which are former colonies of the United Kingdom.
For a complete list, see:
http://en.wikipedia.org/wiki/List_of_members_of_the_Commonwealth_of_Natio
ns_by_name.
1
On the opposite of French and Spanish colonies, there had been no
English state policy. All the American colonies were founded upon
private initiatives.The English crown only intervened to grant charters to
limit the existing freedom of regulation by inserting that no adopted rule
could be contrary or repugnant to the royal legal order. Thus the colons
were free to “invent” a new legal system, to organize themselves as them
pleased – to self-govern themselves. One has to bear in mind that most of
the colons left their country because they had been persecuted for their
faith or because they could not make fortune as they had wished. These
facts are the cornerstones of the American legal system: liberalism and
democracy, as reflected in the famous slogan “no taxation without
representation”. The Constitution adopted September the 17th, 1787
doesn’t express anything else. The founding fathers did not create a State,
but only a “federal government” and “a more perfect Union” between the
States, as yet shown by the first draft of the “Articles of the
Confederation” in 1777. However, the weakness of the central
government under the Articles generated demands for a reform. In 1787, a
“Constitutional Convention” of representatives from each of the States
assembled in Philadelphia and the drafted text was then submitted to state
conventions for ratification. In 1789, the required 9 States had ratified the
new Constitution. In 1791, the first ten amendments, known as Bill of
Rights, were ratified by the states. Prior to the Civil War (1861-1865),
state governments were primarly responsible for meeting the basic needs
of American citizens. The adoption of the Reconstruction Amendments,
which we will discuss later, modified this system basically, permitting
through the due process clauses and the equal protecion principle to
review state legislation, sharping the today existing legal system.
My lectures will only deal with the general structure of American Law,
excluding particular law-systems existing in the Dependent Territories
(Puerto Rico, US Virgin Islands), the Possessions (Guam, American
Samoa, Howland, Baker & Jarvis Islands, Johnston Islands, Kingman
Reef, Midway Islands, Navassa Island, Palmyra Island, Trust Territory of
the Pacific Island, Wake Island and the Indian Tribes Lands.
2
Part I – The Constitution and the Federal System
The Constitution in itself is a short document, containing only seven
articles and 27 amendments. Its understanding is closely connected to the
Federalist Papers that are a series of articles written under the pen name of
Publius by Alexander Hamilton, James Madison, and John Jay2, with the
purpose to gain popular support for the then-proposed Constitution. Some
would call it the most significant public-relations campaign in history.
The constitutional system is based on the theory of the separation of
powers, as originally expounded by Montesquieu. However, the framers
went one step further, introducing a system of check and balances
between the executive, the legislative and the judicial too. The federal
government has only limited powers, mentionnend expressly in the
Constitution, reserving the remainder of the governmental powers to the
States, which vests the executive power in a governor, the legislative
power in the state legislature, and the judicial power in state courts.
On the opposite of other constitutional systems, the United States look up
to their Constitution as a real, true fundemental law, the basis of the
society. Consequently, they did never modify it directly; and in regard to
amendments, there have only been 25 in more than 200 year, whereas
some countries do constantly modify their Magna Carta at least twice a
year like it is the case in Mexico, which Constitution nevertheless
originally was nearly a perfect copy of the American Constitution.
2
Madison, the father of the Constitution, became President of the United States ;
Jay became the first Chief Justice of the US Supreme Court; Hamilton served
in the Cabinet and was a major force in setting the early economic policy for
the United States.
3
4
Lecture # 1 - The Legislative Power
Article I establishes all legislative powers in a Congress composed of a
Senate, representing the States, and a House of Representatives, speaking
for the American People. The Senate is composed of two members from
each of the fifty states, elected for a term of six years. The House of
Representatives is composed of a certain number of members from each
state, the ratio being calculated in direct proportion to the population of
the State. Congressmen are elected for a term of two years.
With a few exceptions, both houses have equal legislative powers. Thus, a
bill can originate in either house, with the notable exception for those
raising revenues that must always originate in the House of
Representatives. Bills must be passed by a majority vote in each house
before being submitted to the President, who signs the bill into law. In
case of a presidential veto, Congress can override it by a two-thirds vote
in both houses.
The enumerated powers of Congress are among else taxation, commerce
and bankruptcy regulation, immigration and naturalization regulation. All
powers not enumerated belong to state congresses. However, Section 8 of
the first article foresees a necessary and proper clause allowing Congress
to pass all the laws that are needed for the execution of its enumerated
powers. These implied powers have a major impact on the constitutional
scheme as shown by the commerce clause. It attributes for example to
Congress the explicite power to regulate interstate commerce. Since the
Supreme Court defined commerce as “ every species of commercial
intercourse… which concerns more states than one”, the commerce clause
gives Congress the power to regulate virtually every form of activity
involving or affecting two or more states and not only commerce between
states. Through the theory of implied powers, Congress can even regulate
local matters if there is a “substantial economic effect upon” or “an effect
on movement in” interstate commerce.
The Senate has exclusive powers to approve treaties and to appoint certain
officials nominated by the President, such as ambassadors, the justices of
the Supreme Court or cabinet members for instance.
5
A particularity of the American constitutional system is the admission of
lobbying, defined as a conduct of activities aimed at influencing public
officials and members of legislative body on legislation. At the moment to
draft the Constitution, Madison understood very well that lobbies cannot
be removed because factional disagreement and self-interest are sown into
the nature of man, and that’s why it has, at least, to be controlled. In 2002,
there have been for instance 17,000 lobbyists in Washington; and 1,600
registered lobbyists in Texas spending some 230 million of dollars for
influencing the Legislature and state agencies.
6
Lecture # 2 - The Executive Power
Article II vests in a President the executive power of the federal
government. His enumerated powers can be divided in two categories: on
one hand, the power over domestic affairs; on the other hand, the power
over foreign affairs.
The President thus can nominate, and with a two-third consent of the
Senate, appoint the justices of the Supreme Court and other officers of the
United States. In regard to foreign affairs, he can, still with the consent of
the Senate, appoint ambassadors. He is also the commander-in-chief of
the armed forces and can act militarly under this power in case of
hostilities against the United States, even in absence of a congressional
declaration of war (as seen during the “Afghanistan crisis”).
His powers are completed by an immunity known as the executive
privilege. It protects the confidentiality of presidential communications,
even if it cannot be opposed as such to courts in criminal proceedings.
Beneath his “rights”, there are also a set of “duties” derived from the
general duty to “faithfully execute” the laws of the United States,
submitted to the control of the Congress through the proceeding of
impeachment. To impeach means to present charges of wrongdoing
against a government official that can lead to his removal from office and,
if it deals with a crime, it can be tried in ordinary courts. The President,
the Vice President and all civil officers of the administration are subject to
impeachment for treason, bribery, high crimes or misdemeanors. In order
to impeach, the House of Representatives must, by a majority vote,
approve a bill of impeachment, which constitutes a form of indictment.
The bill is then sent to the Senate where a two-third vote is needed in
order to remove the impeached person from office.
7
Lectures on the US Legal System
Cases and Materials
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)
Argued May 12-13, 1952.
Decided June 2, 1952.
To avert a nation-wide strike of steel workers in April 1952, which he believed
would jeopardize national defense, the President issued an Executive Order
directing the Secretary of Commerce to seize and operate most of the steel mills.
The Order was not based upon any specific statutory authority but was based
generally upon all powers vested in the President by the Constitution and laws of
the United States and as President of the United States and Commander in Chief
of the Armed Forces. The Secretary issued an order seizing the steel mills and
directing their presidents to operate them as operating managers for the United
States in accordance with his regulations and directions. The president promptly
reported these events to Congress; but Congress took no action. It had provided
other methods of dealing with such situations and had refused to authorize
governmental seizures of property to settle labor disputes. The steel companies
sued the Secretary in Federal District Court, praying for a declaratory judgment
and injunctive relief. The District Court issued a preliminary injunction, which
the Court of Appeals stayed. Held:
1. Although this case has proceeded no further than the preliminary injunction
stage, it is ripe for determination of the constitutional validity of the Executive
Order on the record presented. Pp. 584-585.
(a) Under prior decisions of this Court, there is doubt as to the right to recover in
the Court of Claims on account of properties unlawfully taken by government
officials for public use. P. 585.
(b) Seizure and governmental operation of these going businesses were bound to
result in many present and future damages of such nature as to be difficult, if not
incapable, of measurement. P. 585. [343 U.S. 579, 580]
2. The Executive Order was not authorized by the Constitution or laws of the
United States; and it cannot stand. Pp. 585-589.
(a) There is no statute which expressly or impliedly authorizes the President to
take possession of this property as he did here. Pp. 585-586.
(b) In its consideration of the Taft-Hartley Act in 1947, Congress refused to
authorize governmental seizures of property as a method of preventing work
stoppages and settling labor disputes. P. 586.
8
The Executive Power
(c) Authority of the President to issue such an order in the circumstances of this
case cannot be implied from the aggregate of his powers under Article II of the
Constitution. Pp. 587-589.
(d) The Order cannot properly be sustained as an exercise of the President's
military power as commander in Chief of the Armed Forces. P. 587.
(e) Nor can the Order be sustained because of the several provisions of Article II
which grant executive power to the President. Pp. 587-589.
(f) The power here sought to be exercised is the lawmaking power, which the
Constitution vests in the Congress alone, in both good and bad times. Pp. 587589.
(g) Even if it be true that other Presidents have taken possession of private
business enterprises without congressional authority in order to settle labor
disputes, Congress has not thereby lost its exclusive constitutional authority to
make the laws necessary and proper to carry out all powers vested by the
Constitution "in the Government of the United States, or any Department or
Officer thereof." Pp. 588-589.
103 F. Supp. 569, affirmed.
For concurring opinion of MR. JUSTICE FRANKFURTER, see post, p. 593.
For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 629.
For concurring opinion of MR. JUSTICE JACKSON, see post, p. 634.
For concurring opinion of MR. JUSTICE BURTON, see post, p. 655.
For opinion of MR. JUSTICE CLARK, concurring in the judgment of the Court,
see post, p. 660.
For dissenting opinion of MR. CHIEF JUSTICE VINSON, joined by MR.
JUSTICE REED and MR. JUSTICE MINTON, see post, p. 667.
The District Court issued a preliminary injunction restraining the Secretary of
Commerce from carrying out the terms of Executive Order No. 10340, 16 Fed.
Reg. [343 U.S. 579, 581] 3503. 103 F. Supp. 569. The Court of Appeals issued a
stay. 90 U.S. App. D.C. ___, 197 F.2d 582. This Court granted certiorari. 343
U.S. 937 . The judgment of the District Court is affirmed, p. 589.
[ Footnote * ] Together with No. 745, Sawyer, Secretary of Commerce, v.
Youngstown Sheet & Tube Co. et al., also on certiorari to the same court.
John W. Davis argued the cause for petitioners in No. 744 and respondents in No.
745. On the brief were Mr. Davis, Nathan L. Miller, John Lord O'Brian, Roger
M. Blough, Theodore Kiendl, Porter R. Chandler and Howard C. Westwood for
the United States Steel Co.; Bruce Bromley, E. Fontaine Brown and John H.
Pickering for the Bethlehem Steel Co.; Luther Day, T. F. Patton, Edmund L.
Jones, Howard Boyd and John C. Gall for the Republic Steel Corp.; John C.
Bane, Jr., H. Parker Sharp and Sturgis Warner for the Jones & Laughlin Steel
9
Lectures on the US Legal System
Corp.; Mr. Gall, John J. Wilson and J. E. Bennett for the Youngstown Sheet &
Tube Co. et al.; Charles H. Tuttle, Winfred K. Petigrue and Joseph P. Tumulty,
Jr. (who also filed an additional brief) for the Armco Steel Corp. et al.; and
Randolph W. Childs, Edgar S. McKaig and James Craig Peacock (who also filed
an additional brief) for E. J. Lavino & Co., petitioners in No. 744 and respondents
in No. 745.
Solicitor General Perlman argued the cause for respondent in No. 744 and
petitioner in No. 745. With him on the brief were Assistant Attorney General
Baldridge, James L. Morrisson, Samuel D. Slade, Oscar H. Davis, Robert W.
Ginnane, Marvin E. Frankel, Benjamin Forman and Herman Marcuse.
By special leave of Court, Clifford D. O'Brien and Harold C. Heiss argued the
cause for the Brotherhood of Locomotive Engineers et al., as amici curiae,
supporting petitioners in No. 744 and respondents in No. 745. With them on the
brief were Ruth Weyand and V. C. Shuttleworth. [343 U.S. 579, 582]
By special leave of Court, Arthur J. Goldberg argued the cause for the United
Steelworkers of America, C. I. O., as amicus curiae. With him on the brief was
Thomas E. Harris.
MR. JUSTICE BLACK delivered the opinion of the Court.
We are asked to decide whether the President was acting within his constitutional
power when he issued an order directing the Secretary of Commerce to take
possession of and operate most of the Nation's steel mills. The mill owners argue
that the President's order amounts to lawmaking, a legislative function which the
Constitution has expressly confided to the Congress and not to the President. The
Government's position is that the order was made on findings of the President that
his action was necessary to avert a national catastrophe which would inevitably
result from a stoppage of steel production, and that in meeting this grave
emergency the President was acting within the aggregate of his constitutional
powers as the Nation's Chief Executive and the Commander in Chief of the
Armed Forces of the United States. The issue emerges here from the following
series of events:
In the latter part of 1951, a dispute arose between the steel companies and their
employees over terms and conditions that should be included in new collective
bargaining agreements. Long-continued conferences failed to resolve the dispute.
On December 18, 1951, the employees' representative, United Steelworkers of
America, C. I. O., gave notice of an intention to strike when the existing
bargaining agreements expired on December 31. The Federal Mediation and
Conciliation Service then intervened in an effort to get labor and management to
agree. This failing, the President on December 22, 1951, referred the dispute to
the Federal Wage Stabilization [343 U.S. 579, 583] Board 1 to investigate and
make recommendations for fair and equitable terms of settlement. This Board's
report resulted in no settlement. On April 4, 1952, the Union gave notice of a
nation-wide strike called to begin at 12:01 a. m. April 9. The indispensability of
steel as a component of substantially all weapons and other war materials led the
10
The Executive Power
President to believe that the proposed work stoppage would immediately
jeopardize our national defense and that governmental seizure of the steel mills
was necessary in order to assure the continued availability of steel. Reciting these
considerations for his action, the President, a few hours before the strike was to
begin, issued Executive Order 10340, a copy of which is attached as an appendix,
post, p. 589. The order directed the Secretary of Commerce to take possession of
most of the steel mills and keep them running. The Secretary immediately issued
his own possessory orders, calling upon the presidents of the various seized
companies to serve as operating managers for the United States. They were
directed to carry on their activities in accordance with regulations and directions
of the Secretary. The next morning the President sent a message to Congress
reporting his action. Cong. Rec., April 9, 1952, p. 3962. Twelve days later he sent
a second message. Cong. Rec., April 21, 1952, p. 4192. Congress has taken no
action.
Obeying the Secretary's orders under protest, the companies brought proceedings
against him in the District Court. Their complaints charged that the seizure was
not authorized by an act of Congress or by any constitutional provisions. The
District Court was asked to declare the orders of the President and the Secretary
invalid and to issue preliminary and permanent injunctions restraining their
enforcement. Opposing the motion for preliminary [343 U.S. 579, 584]
injunction, the United States asserted that a strike disrupting steel production for
even a brief period would so endanger the well-being and safety of the Nation
that the President had "inherent power" to do what he had done - power
"supported by the Constitution, by historical precedent, and by court decisions."
The Government also contended that in any event no preliminary injunction
should be issued because the companies had made no showing that their available
legal remedies were inadequate or that their injuries from seizure would be
irreparable. Holding against the Government on all points, the District Court on
April 30 issued a preliminary injunction restraining the Secretary from
"continuing the seizure and possession of the plants . . . and from acting under the
purported authority of Executive Order No. 10340." 103 F. Supp. 569. On the
same day the Court of Appeals stayed the District Court's injunction. 90 U.S.
App. D.C. ___, 197 F.2d 582. Deeming it best that the issues raised be promptly
decided by this Court, we granted certiorari on May 3 and set the cause for
argument on May 12. 343 U.S. 937 .
Two crucial issues have developed: First. Should final determination of the
constitutional validity of the President's order be made in this case which has
proceeded no further than the preliminary injunction stage? Second. If so, is the
seizure order within the constitutional power of the President?
I.
It is urged that there were non-constitutional grounds upon which the District
Court could have denied the preliminary injunction and thus have followed the
customary judicial practice of declining to reach and decide constitutional
questions until compelled to do so. On this basis it is argued that equity's
11
Lectures on the US Legal System
extraordinary injunctive relief should have been denied because (a) seizure of the
companies' properties did not inflict irreparable damages, [343 U.S. 579, 585]
and (b) there were available legal remedies adequate to afford compensation for
any possible damages which they might suffer. While separately argued by the
Government, these two contentions are here closely related, if not identical.
Arguments as to both rest in large part on the Government's claim that should the
seizure ultimately be held unlawful, the companies could recover full
compensation in the Court of Claims for the unlawful taking. Prior cases in this
Court have cast doubt on the right to recover in the Court of Claims on account of
properties unlawfully taken by government officials for public use as these
properties were alleged to have been. See e. g., Hooe v. United States, 218 U.S.
322, 335 -336; United States v. North American Co., 253 U.S. 330, 333 . But see
Larson v. Domestic & Foreign Corp., 337 U.S. 682, 701 -702. Moreover, seizure
and governmental operation of these going businesses were bound to result in
many present and future damages of such nature as to be difficult, if not
incapable, of measurement. Viewing the case this way, and in the light of the
facts presented, the District Court saw no reason for delaying decision of the
constitutional validity of the orders. We agree with the District Court and can see
no reason why that question was not ripe for determination on the record
presented. We shall therefore consider and determine that question now.
II.
The President's power, if any, to issue the order must stem either from an act of
Congress or from the Constitution itself. There is no statute that expressly
authorizes the President to take possession of property as he did here. Nor is there
any act of Congress to which our attention has been directed from which such a
power can fairly be implied. Indeed, we do not understand the Government to
rely on statutory authorization for this seizure. There are two statutes which do
authorize the President [343 U.S. 579, 586] to take both personal and real
property under certain conditions. 2 However, the Government admits that these
conditions were not met and that the President's order was not rooted in either of
the statutes. The Government refers to the seizure provisions of one of these
statutes ( 201 (b) of the Defense Production Act) as "much too cumbersome,
involved, and time-consuming for the crisis which was at hand."
Moreover, the use of the seizure technique to solve labor disputes in order to
prevent work stoppages was not only unauthorized by any congressional
enactment; prior to this controversy, Congress had refused to adopt that method
of settling labor disputes. When the Taft-Hartley Act was under consideration in
1947, Congress rejected an amendment which would have authorized such
governmental seizures in cases of emergency. 3 Apparently it was thought that
the technique of seizure, like that of compulsory arbitration, would interfere with
the process of collective bargaining. 4 Consequently, the plan Congress adopted
in that Act did not provide for seizure under any circumstances. Instead, the plan
sought to bring about settlements by use of the customary devices of mediation,
conciliation, investigation by boards of inquiry, and public reports. In some
instances temporary injunctions were authorized to provide cooling-off periods.
12
The Executive Power
All this failing, unions were left free to strike after a secret vote by employees as
to whether they wished to accept their employers' final settlement offer. 5 [343
U.S. 579, 587]
It is clear that if the President had authority to issue the order he did, it must be
found in some provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The contention is that
presidential power should be implied from the aggregate of his powers under the
Constitution. Particular reliance is placed on provisions in Article II which say
that "The executive Power shall be vested in a President . . ."; that "he shall take
Care that the Laws be faithfully executed"; and that he "shall be Commander in
Chief of the Army and Navy of the United States."
The order cannot properly be sustained as an exercise of the President's military
power as Commander in Chief of the Armed Forces. The Government attempts to
do so by citing a number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of war. Such cases need
not concern us here. Even though "theater of war" be an expanding concept, we
cannot with faithfulness to our constitutional system hold that the Commander in
Chief of the Armed Forces has the ultimate power as such to take possession of
private property in order to keep labor disputes from stopping production. This is
a job for the Nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the President's power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution limits his functions
in the lawmaking process to the recommending of laws he thinks wise and the
vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal
about who shall make laws which the President is to execute. The [343 U.S. 579,
588] first section of the first article says that "All legislative Powers herein
granted shall be vested in a Congress of the United States . . . ." After granting
many powers to the Congress, Article I goes on to provide that Congress may
"make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof."
The President's order does not direct that a congressional policy be executed in a
manner prescribed by Congress - it directs that a presidential policy be executed
in a manner prescribed by the President. The preamble of the order itself, like that
of many statutes, sets out reasons why the President believes certain policies
should be adopted, proclaims these policies as rules of conduct to be followed,
and again, like a statute, authorizes a government official to promulgate
additional rules and regulations consistent with the policy proclaimed and needed
to carry that policy into execution. The power of Congress to adopt such public
policies as those proclaimed by the order is beyond question. It can authorize the
taking of private property for public use. It can make laws regulating the
relationships between employers and employees, prescribing rules designed to
13
Lectures on the US Legal System
settle labor disputes, and fixing wages and working conditions in certain fields of
our economy. The Constitution does not subject this lawmaking power of
Congress to presidential or military supervision or control.
It is said that other Presidents without congressional authority have taken
possession of private business enterprises in order to settle labor disputes. But
even if this be true, Congress has not thereby lost its exclusive constitutional
authority to make laws necessary and proper to carry out the powers vested by the
Constitution [343 U.S. 579, 589] "in the Government of the United States, or
any Department or Officer thereof."
The Founders of this Nation entrusted the lawmaking power to the Congress
alone in both good and bad times. It would do no good to recall the historical
events, the fears of power and the hopes for freedom that lay behind their choice.
Such a review would but confirm our holding that this seizure order cannot stand.
The judgment of the District Court is
Affirmed.
14
Lecture # 3: The Judicial Power
Justices are nominated and appointed by the President, with the consent of
the Senate. Furthermore, the head of the executive cannot easily remove a
judge from the Supreme Court as the tenure of the justices is ensured
during good behavior pursuant to the terms of the Constitution, ensuring
thus a position for life.
Originally, the Court was conceived as a Cour de cassation, however, in
its landmark decision Marbury v. Madison3, it swifted to a constitutional
tribunal establishing the doctrine of judicial review, considering that since
the Constitution is “the law” and since the province and duty of the
judiciary is to declare what the law is, the federal judiciary has the power
to review and to declare unconstitutional the acts of other branches of the
federal government. The ruling in Fletcher v. Peck4 went a step further,
using the supremacy clause which states that the Constitution, federal
laws and treaties are the supreme law of the land and that state court
judges are bound by these laws “anything in the constitution or laws of
any state to the contrary notwithstanding”. Thus, any state executive,
legislative or judicial act which is undertaken pursuant to a state’s
constitution or state law can be subject to judicial review by federal courts
to determine its conformity with the Constitution, federal laws or treaties
of the United States.
3
5 US 137 (1803). Background and Explanations:
http://www.jmu.edu/madison/marbury/index.html.
4
10 US 87 (1810).
15
16
Lecture # 4: The Separation of Powers
As I already said, the American constitutionnal system reflects the
theory of the separation of powers. Consecuently, each branch of
the governement must be able to supervise the other two to assure
that each remains within its limits so as to avoid an abuse of power.
This mechanism is called checks and balances.
It is interesting to note that although the President’s powers had
been designed to confer to the executive a very active role in the
federal system, they are also the most submitted to the check and
balances. The Preisdent is, for instance, empowered to nominate
judges to the bench of the Supreme Court, but with the approval by
a two-thirds vote of the Senate; he nominates the officers of his
administration but its decision is subject to Senate approval as well.
In the same way, the executive controls the legislative. In effect, the
President must sign the bills voted by the Congress in order to give
them effect as acts. In other words, it gives the President a right to
veto, which can only be overriden by a two thirds vote of each
house. These are only a few examples of a system that essentially
aims to preserve democracy. And as it seems, it works.
17
Lectures on the US Legal System
Cases and Materials
INS v. CHADHA, 462 U.S. 919 (1983)
IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA ET
AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 80-1832.
Argued
February
22,
Decided June 23, 1983 *
1982
Reargued
December
7,
1982
Section 244(c)(2) of the Immigration and Nationality Act (Act) authorizes either
House of Congress, by resolution, to invalidate the decision of the Executive
Branch, pursuant to authority delegated by Congress to the Attorney General, to
allow a particular deportable alien to remain in the United States. Appelleerespondent Chadha, an alien who had been lawfully admitted to the United States
on a nonimmigrant student visa, remained in the United States after his visa had
expired and was ordered by the Immigration and Naturalization Service (INS) to
show cause why he should not be deported. He then applied for suspension of the
deportation, and, after a hearing, an Immigration Judge, acting pursuant to
244(a)(1) of the Act, which authorizes the Attorney General, in his discretion, to
suspend deportation, ordered the suspension, and reported the suspension to
Congress as required by 244(c)(1). Thereafter, the House of Representatives
passed a resolution pursuant to 244(c)(2) vetoing the suspension, and the
Immigration Judge reopened the deportation proceedings. Chadha moved to
terminate the proceedings on the ground that 244(c)(2) is unconstitutional, but the
judge held that he had no authority to rule on its constitutionality and ordered
Chadha deported pursuant to the House Resolution. Chadha's appeal to the Board
of Immigration Appeals was dismissed, the Board also holding that it had no
power to declare 244(c)(2) unconstitutional. Chadha then filed a petition for
review of the deportation order in the Court of Appeals, and the INS joined him
in arguing that 244(c)(2) is unconstitutional. The Court of Appeals held that
244(c)(2) violates the constitutional doctrine of separation of powers, and
accordingly directed the Attorney General to cease taking any steps to deport
Chadha based upon the House Resolution. [462 U.S. 919, 920]
Held:
18
Separation of Powers
1. This Court has jurisdiction to entertain the INS's appeal in No. 80-1832 under
28 U.S.C. 1252, which provides that "[a]ny party" may appeal to the Supreme
Court from a judgment of "any court of the United States" holding an Act of
Congress unconstitutional in "any civil action, suit, or proceeding" to which the
United States or any of its agencies is a party. A court of appeals is "a court of the
United States" for purposes of 1252, the proceeding below was a "civil action,
suit, or proceeding," the INS is an agency of the United States and was a party to
the proceeding below, and the judgment below held an Act of Congress
unconstitutional. Moreover, for purposes of deciding whether the INS was "any
party" within the grant of appellate jurisdiction in 1252, the INS was sufficiently
aggrieved by the Court of Appeals' decision prohibiting it from taking action it
would otherwise take. An agency's status as an aggrieved party under 1252 is not
altered by the fact that the Executive may agree with the holding that the statute
in question is unconstitutional. Pp. 929-931.
2. Section 244(c)(2) is severable from the remainder of 244. Section 406 of the
Act provides that if any particular provision of the Act is held invalid, the
remainder of the Act shall not be affected. This gives rise to a presumption that
Congress did not intend the validity of the Act as a whole, or any part thereof, to
depend upon whether the veto clause of 244(c)(2) was invalid. This presumption
is supported by 244's legislative history. Moreover, a provision is further
presumed severable if what remains after severance is fully operative as a law.
Here, 244 can survive as a "fully operative" and workable administrative
mechanism without the one-House veto. Pp. 931-935.
3. Chadha has standing to challenge the constitutionality of 244(c)(2) since he has
demonstrated "injury in fact and a substantial likelihood that the judicial relief
requested will prevent or redress the claimed injury." Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59, 79 . Pp. 935-936.
4. The fact that Chadha may have other statutory relief available to him does not
preclude him from challenging the constitutionality of 244(c)(2), especially
where the other avenues of relief are at most speculative. Pp. 936-937.
5. The Court of Appeals had jurisdiction under 106(a) of the Act, which provides
that a petition for review in a court of appeals "shall be the sole and exclusive
procedure for the judicial review of all final orders of deportation . . . made
against aliens within the United States pursuant to administrative proceedings"
under 242(b) of the Act. Section 106(a) includes all matters on which the final
deportation order is contingent, rather than only those determinations made at the
deportation [462 U.S. 919, 921] hearing. Here, Chadha's deportation stands or
falls on the validity of the challenged veto, the final deportation order having
been entered only to implement that veto. Pp. 937-939.
6. A case or controversy is presented by these cases. From the time of the House's
formal intervention, there was concrete adverseness, and prior to such
intervention, there was adequate Art. III adverseness even though the only parties
were the INS and Chadha. The INS's agreement with Chadha's position does not
alter the fact that the INS would have deported him absent the Court of Appeals'
19
Lectures on the US Legal System
judgment. Moreover, Congress is the proper party to defend the validity of a
statute when a Government agency, as a defendant charged with enforcing the
statute, agrees with plaintiffs that the statute is unconstitutional. Pp. 939-940.
7. These cases do not present a nonjusticiable political question on the asserted
ground that Chadha is merely challenging Congress' authority under the
Naturalization and Necessary and Proper Clauses of the Constitution. The
presence of constitutional issues with significant political overtones does not
automatically invoke the political question doctrine. Resolution of litigation
challenging the constitutional authority of one of the three branches cannot be
evaded by the courts simply because the issues have political implications. Pp.
940-943.
8. The congressional veto provision in 244(c)(2) is unconstitutional. Pp. 944-959.
(a) The prescription for legislative action in Art. I, 1 - requiring all legislative
powers to be vested in a Congress consisting of a Senate and a House of
Representatives - and 7 - requiring every bill passed by the House and Senate,
before becoming law, to be presented to the President, and, if he disapproves, to
be repassed by two-thirds of the Senate and House - represents the Framers'
decision that the legislative power of the Federal Government be exercised in
accord with a single, finely wrought and exhaustively considered procedure. This
procedure is an integral part of the constitutional design for the separation of
powers. Pp. 944-951.
(b) Here, the action taken by the House pursuant to 244(c)(2) was essentially
legislative in purpose and effect and thus was subject to the procedural
requirements of Art. I, 7, for legislative action: passage by a majority of both
Houses and presentation to the President. The one-House veto operated to
overrule the Attorney General and mandate Chadha's deportation. The veto's
legislative character is confirmed by the character of the congressional action it
supplants; i. e., absent the veto provision of 244(c)(2), neither the House nor the
Senate, or both acting together, could effectively require the Attorney General to
deport an alien once the Attorney General, in the exercise of legislatively [462
U.S. 919, 922] delegated authority, had determined that the alien should remain
in the United States. Without the veto provision, this could have been achieved
only by legislation requiring deportation. A veto by one House under 244(c)(2)
cannot be justified as an attempt at amending the standards set out in 244(a)(1),
or as a repeal of 244 as applied to Chadha. The nature of the decision
implemented by the one-House veto further manifests its legislative character.
Congress must abide by its delegation of authority to the Attorney General until
that delegation is legislatively altered or revoked. Finally, the veto's legislative
character is confirmed by the fact that when the Framers intended to authorize
either House of Congress to act alone and outside of its prescribed bicameral
legislative role, they narrowly and precisely defined the procedure for such action
in the Constitution. Pp. 951-959.
634 F.2d 408, affirmed.
20
Separation of Powers
[ Footnote * ] Together with No. 80-2170, United States House of
Representatives v. Immigration and Naturalization Service et al., and No. 802171, United States Senate v. Immigration and Naturalization Service et al., on
certiorari to the same court.
BURGER, C. J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined.
POWELL, J., filed an opinion concurring in the judgment, post, p. 959. WHITE,
J., filed a dissenting opinion, post, p. 967. REHNQUIST, J., filed a dissenting
opinion, in which WHITE, J., joined, post, p. 1013.
Eugene Gressman reargued the cause for petitioner in No. 80-2170. With him on
the briefs was Stanley M. Brand.
Michael Davidson reargued the cause for petitioner in No. 80-2171. With him on
the briefs were M. Elizabeth Culbreth and Charles Tiefer.
Solicitor General Lee reargued the cause for the Immigration and Naturalization
Service in all cases. With him on the briefs were Assistant Attorney General
Olson, Deputy Solicitor General Geller, Deputy Assistant Attorney General
Simms, Edwin S. Kneedler, David A. Strauss, and Thomas O. Sargentich.
Alan B. Morrison reargued the cause for Jagdish Rai Chadha in all cases. With
him on the brief was John Cary Sims.Fn
Fn [462 U.S. 919, 922] Antonin Scalia, Richard B. Smith, and David Ryrie
Brink filed a brief for the American Bar Association as amicus curiae urging
affirmance.
Briefs of amici curiae were filed by Robert C. Eckhardt for Certain Members of
the United States House of Representatives; and by Paul C. Rosenthal for the
Counsel on Administrative Law of the Federal Bar Association. [462 U.S. 919,
923]
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration
of the question of jurisdiction in No. 80-1832. Each presents a challenge to the
constitutionality of the provision in 244(c)(2) of the Immigration and Nationality
Act, 66 Stat. 216, as amended, 8 U.S.C. 1254(c) (2), authorizing one House of
Congress, by resolution, to invalidate the decision of the Executive Branch,
pursuant to authority delegated by Congress to the Attorney General of the
United States, to allow a particular deportable alien to remain in the United
States.
I
Chadha is an East Indian who was born in Kenya and holds a British passport. He
was lawfully admitted to the United States in 1966 on a nonimmigrant student
visa. His visa expired on June 30, 1972. On October 11, 1973, the District
Director of the Immigration and Naturalization Service ordered Chadha to show
21
Lectures on the US Legal System
cause why he should not be deported for having "remained in the United States
for a longer time than permitted." App. 6. Pursuant to 242(b) of the Immigration
and Nationality Act (Act), 8 U.S.C. 1252(b), a deportation hearing was held
before an Immigration Judge on January 11, 1974. Chadha conceded that he was
deportable for overstaying his visa and the hearing was adjourned to enable him
to file an application for suspension of deportation under 244(a)(1) of the Act, 8
U.S.C. 1254(a)(1). Section 244(a)(1), at the time in question, provided:
"As hereinafter prescribed in this section, the Attorney General may, in his
discretion, suspend deportation and adjust the status to that of an alien lawfully
admitted for permanent residence, in the case of an alien who applies to the
Attorney General for suspension of deportation and "(1) is deportable under any law of the United States except the provisions
specified in paragraph (2) of this subsection; has been physically present in the
United [462 U.S. 919, 924] States for a continuous period of not less than seven
years immediately preceding the date of such application, and proves that during
all of such period he was and is a person of good moral character; and is a person
whose deportation would, in the opinion of the Attorney General, result in
extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted for permanent residence." 1
After Chadha submitted his application for suspension of deportation, the
deportation hearing was resumed on February 7, 1974. On the basis of evidence
adduced at the hearing, affidavits submitted with the application, and the results
of a character investigation conducted by the INS, the Immigration Judge, on
June 25, 1974, ordered that Chadha's deportation be suspended. The Immigration
Judge found that Chadha met the requirements of 244(a)(1): he had resided
continuously in the United States for over seven years, was of good moral
character, and would suffer "extreme hardship" if deported.
Pursuant to 244(c)(1) of the Act, 8 U.S.C. 1254(c)(1), the Immigration Judge
suspended Chadha's deportation and a report of the suspension was transmitted to
Congress. Section 244(c)(1) provides:
"Upon application by any alien who is found by the Attorney General to meet the
requirements of subsection (a) of this section the Attorney General may in his
discretion suspend deportation of such alien. If the deportation of any alien is
suspended under the provisions of this subsection, a complete and detailed
statement of the [462 U.S. 919, 925] facts and pertinent provisions of law in the
case shall be reported to the Congress with the reasons for such suspension. Such
reports shall be submitted on the first day of each calendar month in which
Congress is in session."
Once the Attorney General's recommendation for suspension of Chadha's
deportation was conveyed to Congress, Congress had the power under 244(c)(2)
of the Act, 8 U.S.C. 1254(c) (2), to veto 2 the Attorney General's determination
that Chadha should not be deported. Section 244(c)(2) provides:
22
Separation of Powers
"(2) In the case of an alien specified in paragraph (1) of subsection (a) of this
subsection "if during the session of the Congress at which a case is reported, or prior to the
close of the session of the Congress next following the session at which a case is
reported, either the Senate or the House of Representatives passes a resolution
stating in substance that it does not favor the suspension of such deportation, the
Attorney General shall thereupon deport such alien or authorize the alien's
voluntary departure at his own expense under the order of deportation in the
manner provided by law. If, within the time above specified, neither the Senate
nor the House of Representatives shall pass such a resolution, the Attorney
General shall cancel deportation proceedings." [462 U.S. 919, 926]
The June 25, 1974, order of the Immigration Judge suspending Chadha's
deportation remained outstanding as a valid order for a year and a half. For
reasons not disclosed by the record, Congress did not exercise the veto authority
reserved to it under 244(c)(2) until the first session of the 94th Congress. This
was the final session in which Congress, pursuant to 244(c)(2), could act to veto
the Attorney General's determination that Chadha should not be deported. The
session ended on December 19, 1975. 121 Cong. Rec. 42014, 42277 (1975).
Absent congressional action, Chadha's deportation proceedings would have been
canceled after this date and his status adjusted to that of a permanent resident
alien. See 8 U.S.C. 1254(d).
On December 12, 1975, Representative Eilberg, Chairman of the Judiciary
Subcommittee on Immigration, Citizenship, and International Law, introduced a
resolution opposing "the granting of permanent residence in the United States to
[six] aliens," including Chadha. H. Res. 926, 94th Cong., 1st Sess.; 121 Cong
Rec. 40247 (1975). The resolution was referred to the House Committee on the
Judiciary. On December 16, 1975, the resolution was discharged from further
consideration by the House Committee on the Judiciary and submitted to the
House of Representatives for a vote. 121 Cong. Rec. 40800. The resolution had
not been printed and was not made available to other Members of the House prior
to or at the time it was voted on. Ibid. So far as the record before us shows, the
House consideration of the resolution was based on Representative Eilberg's
statement from the floor that
"[i]t was the feeling of the committee, after reviewing 340 cases, that the aliens
contained in the resolution [Chadha and five others] did not meet these statutory
requirements, particularly as it relates to hardship; and it is the opinion of the
committee that their deportation should not be suspended." Ibid. [462 U.S. 919,
927]
The resolution was passed without debate or recorded vote. 3 Since the House
action was pursuant to 244(c)(2), the resolution was not treated as an Art. I
legislative act; it was not [462 U.S. 919, 928] submitted to the Senate or
presented to the President for his action.
23
Lectures on the US Legal System
After the House veto of the Attorney General's decision to allow Chadha to
remain in the United States, the Immigration Judge reopened the deportation
proceedings to implement the House order deporting Chadha. Chadha moved to
terminate the proceedings on the ground that 244(c)(2) is unconstitutional. The
Immigration Judge held that he had no authority to rule on the constitutional
validity of 244(c)(2). On November 8, 1976, Chadha was ordered deported
pursuant to the House action.
Chadha appealed the deportation order to the Board of Immigration Appeals,
again contending that 244(c)(2) is unconstitutional. The Board held that it had
"no power to declare unconstitutional an act of Congress" and Chadha's appeal
was dismissed. App. 55-56.
Pursuant to 106(a) of the Act, 8 U.S.C. 1105a(a), Chadha filed a petition for
review of the deportation order in the United States Court of Appeals for the
Ninth Circuit. The Immigration and Naturalization Service agreed with Chadha's
position before the Court of Appeals and joined him in arguing that 244(c)(2) is
unconstitutional. In light of the importance of the question, the Court of Appeals
invited both the Senate and the House of Representatives to file briefs amici
curiae.
After full briefing and oral argument, the Court of Appeals held that the House
was without constitutional authority to order Chadha's deportation; accordingly it
directed the Attorney General "to cease and desist from taking any steps to deport
this alien based upon the resolution enacted by the House of Representatives."
634 F.2d 408, 436 (1980). The essence of its holding was that 244(c)(2) violates
the constitutional doctrine of separation of powers.
We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration
of our jurisdiction over the appeal in No. 80-1832, 454 U.S. 812 (1981), and we
now affirm. [462 U.S. 919, 929]
II
Before we address the important question of the constitutionality of the oneHouse veto provision of 244(c)(2), we first consider several challenges to the
authority of this Court to resolve the issue raised.
A
Appellate Jurisdiction
Both Houses of Congress 4 contend that we are without jurisdiction under 28
U.S.C. 1252 to entertain the INS appeal in No. 80-1832. Section 1252 provides:
"Any party may appeal to the Supreme Court from an interlocutory or final
judgment, decree or order of any court of the United States, the United States
District Court for the District of the Canal Zone, the District Court of Guam and
the District Court of the Virgin Islands and any court of record of Puerto Rico,
holding an Act of Congress unconstitutional in any civil action, suit, or
24
Separation of Powers
proceeding to which the United States or any of its agencies, or any officer or
employee thereof, as such officer or employee, is a party."
Parker v. Levy, 417 U.S. 733, 742 , n. 10 (1974), makes clear that a court of
appeals is a "court of the United States" for purposes of 1252. It is likewise clear
that the proceeding below was a "civil action, suit, or proceeding," that the INS is
an agency of the United States and was a party to the proceeding below, and that
that proceeding held an Act of Congress - namely, the one-House veto provision
in 244(c)(2) - unconstitutional. The express requisites for an appeal under 1252,
therefore, have been met. [462 U.S. 919, 930]
In motions to dismiss the INS appeal, the congressional parties 5 direct attention,
however, to our statement that "[a] party who receives all that he has sought
generally is not aggrieved by the judgment affording the relief and cannot appeal
from it." Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333 (1980).
Here, the INS sought the invalidation of 244(c)(2), and the Court of Appeals
granted that relief. Both Houses contend that the INS has already received what it
sought from the Court of Appeals, is not an aggrieved party, and therefore cannot
appeal from the decision of the Court of Appeals. We cannot agree.
The INS was ordered by one House of Congress to deport Chadha. As we have
set out more fully, supra, at 928, the INS concluded that it had no power to rule
on the constitutionality of that order and accordingly proceeded to implement it.
Chadha's appeal challenged that decision and the INS presented the Executive's
views on the constitutionality of the House action to the Court of Appeals. But
the INS brief to the Court of Appeals did not alter the agency's decision to
comply with the House action ordering deportation of Chadha. The Court of
Appeals set aside the deportation proceedings and ordered the Attorney General
to cease and desist from taking any steps to deport Chadha; steps that the
Attorney General would have taken were it not for that decision.
At least for purposes of deciding whether the INS is "any party" within the grant
of appellate jurisdiction in 1252, we hold that the INS was sufficiently aggrieved
by the Court of Appeals decision prohibiting it from taking action it would
otherwise take. It is apparent that Congress intended that [462 U.S. 919, 931]
this Court take notice of cases that meet the technical prerequisites of 1252; in
other cases where an Act of Congress is held unconstitutional by a federal court,
review in this Court is available only by writ of certiorari. When an agency of the
United States is a party to a case in which the Act of Congress it administers is
held unconstitutional, it is an aggrieved party for purposes of taking an appeal
under 1252. The agency's status as an aggrieved party under 1252 is not altered
by the fact that the Executive may agree with the holding that the statute in
question is unconstitutional. The appeal in No. 80-1832 is therefore properly
before us. 6
25
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B
Severability
Congress also contends that the provision for the one-House veto in 244(c)(2)
cannot be severed from 244. Congress argues that if the provision for the oneHouse veto is held unconstitutional, all of 244 must fall. If 244 in its entirety is
violative of the Constitution, it follows that the Attorney General has no authority
to suspend Chadha's deportation under 244(a)(1) and Chadha would be deported.
From this, Congress argues that Chadha lacks standing to challenge the
constitutionality of the one-House veto provision because he could receive no
relief even if his constitutional challenge proves successful. 7
Only recently this Court reaffirmed that the invalid portions of a statute are to be
severed "`[u]nless it is evident that [462 U.S. 919, 932] the Legislature would
not have enacted those provisions which are within its power, independently of
that which is not.'" Buckley v. Valeo, 424 U.S. 1, 108 (1976), quoting Champlin
Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932).
Here, however, we need not embark on that elusive inquiry since Congress itself
has provided the answer to the question of severability in 406 of the Immigration
and Nationality Act, note following 8 U.S.C. 1101, which provides:
"If any particular provision of this Act, or the application thereof to any person or
circumstance, is held invalid, the remainder of the Act and the application of such
provision to other persons or circumstances shall not be affected thereby."
(Emphasis added.)
This language is unambiguous and gives rise to a presumption that Congress did
not intend the validity of the Act as a whole, or of any part of the Act, to depend
upon whether the veto clause of 244(c)(2) was invalid. The one-House veto
provision in 244(c)(2) is clearly a "particular provision" of the Act as that
language is used in the severability clause. Congress clearly intended "the
remainder of the Act" to stand if "any particular provision" were held invalid.
Congress could not have more plainly authorized the presumption that the
provision for a one-House veto in 244(c)(2) is severable from the remainder of
244 and the Act of which it is a part. See Electric Bond & Share Co. v. SEC, 303
U.S. 419, 434 (1938).
The presumption as to the severability of the one-House veto provision in
244(c)(2) is supported by the legislative history of 244. That section and its
precursors supplanted the long-established pattern of dealing with deportations
like Chadha's on a case-by-case basis through private bills. Although it may be
that Congress was reluctant to delegate final authority over cancellation of
deportations, such reluctance is not sufficient to overcome the presumption of
severability raised by 406. [462 U.S. 919, 933]
The Immigration Act of 1924, ch. 190, 14, 43 Stat. 162, required the Secretary of
Labor to deport any alien who entered or remained in the United States
unlawfully. The only means by which a deportable alien could lawfully remain in
the United States was to have his status altered by a private bill enacted by both
26
Separation of Powers
Houses and presented to the President pursuant to the procedures set out in Art. I,
7, of the Constitution. These private bills were found intolerable by Congress. In
the debate on a 1937 bill introduced by Representative Dies to authorize the
Secretary to grant permanent residence in "meritorious" cases, Dies stated:
"It was my original thought that the way to handle all these meritorious cases was
through special bills. I am absolutely convinced as a result of what has occurred
in this House that it is impossible to deal with this situation through special bills.
We had a demonstration of that fact not long ago when 15 special bills were
before this House. The House consumed 5 1/2 hours considering four bills and
made no disposition of any of the bills." 81 Cong. Rec. 5542 (1937).
Representative Dies' bill passed the House, id., at 5574, but did not come to a
vote in the Senate. 83 Cong. Rec. 8992-8996 (1938).
Congress first authorized the Attorney General to suspend the deportation of
certain aliens in the Alien Registration Act of 1940, ch. 439, 20, 54 Stat. 671.
That Act provided that an alien was to be deported, despite the Attorney General's
decision to the contrary, if both Houses, by concurrent resolution, disapproved
the suspension.
In 1948, Congress amended the Act to broaden the category of aliens eligible for
suspension of deportation. In addition, however, Congress limited the authority of
the Attorney General to suspend deportations by providing that the Attorney
General could not cancel a deportation unless both Houses affirmatively voted by
concurrent resolution to approve the Attorney General's action. Act of July 1,
1948, [462 U.S. 919, 934] ch. 783, 62 Stat. 1206. The provision for approval by
concurrent resolution in the 1948 Act proved almost as burdensome as private
bills. Just one year later, the House Judiciary Committee, in support of the
predecessor to 244(c)(2), stated in a Report:
"In the light of experience of the last several months, the committee came to the
conclusion that the requirement of affirmative action by both Houses of the
Congress in many thousands of individual cases which are submitted by the
Attorney General every year, is not workable and places upon the Congress and
particularly on the Committee on the Judiciary responsibilities which it cannot
assume. The new responsibilities placed upon the Committee on the Judiciary [by
the concurrent resolution mechanism] are of purely administrative nature and
they seriously interfere with the legislative work of the Committee on the
Judiciary and would, in time, interfere with the legislative work of the House." H.
R. Rep. No. 362, 81st Cong., 1st Sess., 2 (1949).
The proposal to permit one House of Congress to veto the Attorney General's
suspension of an alien's deportation was incorporated in the Immigration and
Nationality Act of 1952, Pub. L. 414, 244(a), 66 Stat. 214. Plainly, Congress'
desire to retain a veto in this area cannot be considered in isolation but must be
viewed in the context of Congress' irritation with the burden of private
immigration bills. This legislative history is not sufficient to rebut the
presumption of severability raised by 406 because there is insufficient evidence
27
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that Congress would have continued to subject itself to the onerous burdens of
private bills had it known that 244(c)(2) would be held unconstitutional.
A provision is further presumed severable if what remains after severance "is
fully operative as a law." Champlin Refining Co. v. Corporation Comm'n, supra,
at 234. There can be no doubt that 244 is "fully operative" and workable
administrative machinery without the veto provision in 244(c)(2). Entirely
independent of the one-House veto, the [462 U.S. 919, 935] administrative
process enacted by Congress authorizes the Attorney General to suspend an
alien's deportation under 244(a). Congress' oversight of the exercise of this
delegated authority is preserved since all such suspensions will continue to be
reported to it under 244(c)(1). Absent the passage of a bill to the contrary, 8
deportation proceedings will be canceled when the period specified in 244(c)(2)
has expired. 9 Clearly, 244 survives as a workable administrative mechanism
without the one-House veto.
C
Standing
We must also reject the contention that Chadha lacks standing because a
consequence of his prevailing will advance [462 U.S. 919, 936] the interests of
the Executive Branch in a separation-of-powers dispute with Congress, rather
than simply Chadha's private interests. Chadha has demonstrated "injury in fact
and a substantial likelihood that the judicial relief requested will prevent or
redress the claimed injury . . . ." Duke Power Co. v. Carolina Environmental
Study Group, Inc., 438 U.S. 59, 79 (1978). If the veto provision violates the
Constitution, and is severable, the deportation order against Chadha will be
canceled. Chadha therefore has standing to challenge the order of the Executive
mandated by the House veto.
D
Alternative Relief
It is contended that the Court should decline to decide the constitutional question
presented by these cases because Chadha may have other statutory relief available
to him. It is argued that since Chadha married a United States citizen on August
10, 1980, it is possible that other avenues of relief may be open under 201(b),
204, and 245 of the Act, 8 U.S.C. 1151(b), 1154, and 1255. It is true that Chadha
may be eligible for classification as an "immediate relative" and, as such, could
lawfully be accorded permanent residence. Moreover, in March 1980, just prior
to the decision of the Court of Appeals in these cases, Congress enacted the
Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102, under which the Attorney
General is authorized to grant asylum, and then permanent residence, to any alien
who is unable to return to his country of nationality because of "a wellfounded
fear of persecution on account of race."
It is urged that these two intervening factors constitute a prudential bar to our
consideration of the constitutional question presented in these cases. See
28
Separation of Powers
Ashwander v. TVA, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring). If we
could perceive merit in this contention we might well seek to avoid deciding the
constitutional claim advanced. But at most [462 U.S. 919, 937] these other
avenues of relief are speculative. It is by no means certain, for example, that
Chadha's classification as an immediate relative would result in the adjustment of
Chadha's status from nonimmigrant to permanent resident. See Menezes v. INS,
601 F.2d 1028 (CA9 1979). If Chadha is successful in his present challenge he
will not be deported and will automatically become eligible to apply for
citizenship. 10 A person threatened with deportation cannot be denied the right to
challenge the constitutional validity of the process which led to his status merely
on the basis of speculation over the availability of other forms of relief.
E
Jurisdiction
It is contended that the Court of Appeals lacked jurisdiction under 106(a) of the
Act, 8 U.S.C. 1105a(a). That section provides that a petition for review in the
Court of Appeals "shall be the sole and exclusive procedure for the judicial
review of all final orders of deportation . . . made against aliens within the United
States pursuant to administrative proceedings under section 242(b) of this Act."
Congress argues that the one-House veto authorized by 244(c)(2) takes place
outside the administrative proceedings conducted under 242(b), and that the
jurisdictional grant contained in 106(a) does not encompass Chadha's
constitutional challenge.
In Cheng Fan Kwok v. INS, 392 U.S. 206, 216 (1968), this Court held that "
106(a) embrace[s] only those determinations [462 U.S. 919, 938] made during a
proceeding conducted under 242(b), including those determinations made
incident to a motion to reopen such proceedings." It is true that one court has read
Cheng Fan Kwok to preclude appeals similar to Chadha's. See Dastmalchi v. INS,
660 F.2d 880 (CA3 1981). 11 However, we agree with the Court of Appeals in
these cases that the term "final orders" in 106(a) "includes all matters on which
the validity of the final order is contingent, rather than only those determinations
actually made at the hearing." 634 F.2d, at 412. Here, Chadha's deportation stands
or falls on the validity of the challenged veto; the final order of deportation was
entered against Chadha only to implement the action of the House of
Representatives. Although the Attorney General was satisfied that the House
action was invalid and that it should not have any effect on his decision to
suspend deportation, he appropriately let the controversy take its course through
the courts.
This Court's decision in Cheng Fan Kwok, supra, does not bar Chadha's appeal.
There, after an order of deportation had been entered, the affected alien requested
the INS to stay the execution of that order. When that request was denied, the
alien sought review in the Court of Appeals under 106(a). This Court's holding
that the Court of Appeals lacked jurisdiction was based on the fact that the alien
"did not `attack the deportation order itself but instead [sought] relief not
inconsistent with it.'" 392 U.S., at 213 , quoting [462 U.S. 919, 939] Mui v.
29
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Esperdy, 371 F.2d 772, 777 (CA2 1966). Here, in contrast, Chadha directly
attacks the deportation order itself, and the relief he seeks - cancellation of
deportation - is plainly inconsistent with the deportation order. Accordingly, the
Court of Appeals had jurisdiction under 106(a) to decide these cases.
F
Case or Controversy
It is also contended that this is not a genuine controversy but "a friendly, nonadversary, proceeding," Ashwander v. TVA, 297 U.S., at 346 (Brandeis, J.,
concurring), upon which the Court should not pass. This argument rests on the
fact that Chadha and the INS take the same position on the constitutionality of the
one-House veto. But it would be a curious result if, in the administration of
justice, a person could be denied access to the courts because the Attorney
General of the United States agreed with the legal arguments asserted by the
individual.
A case or controversy is presented by these cases. First, from the time of
Congress' formal intervention, see n. 5, supra, the concrete adverseness is beyond
doubt. Congress is both a proper party to defend the constitutionality of 244(c)(2)
and a proper petitioner under 28 U.S.C. 1254(1). Second, prior to Congress'
intervention, there was adequate Art. III adverseness even though the only parties
were the INS and Chadha. We have already held that the INS's agreement with
the Court of Appeals' decision that 244(c)(2) is unconstitutional does not affect
that agency's "aggrieved" status for purposes of appealing that decision under 28
U.S.C. 1252, see supra, at 929-931. For similar reasons, the INS's agreement with
Chadha's position does not alter the fact that the INS would have deported
Chadha absent the Court of Appeals' judgment. We agree with the Court of
Appeals that "Chadha has asserted a concrete controversy, and our decision will
have real meaning: if we rule for Chadha, he will not be deported; if we uphold
244(c)(2), [462 U.S. 919, 940] the INS will execute its order and deport him."
634 F.2d, at 419. 12
Of course, there may be prudential, as opposed to Art. III, concerns about
sanctioning the adjudication of these cases in the absence of any participant
supporting the validity of 244(c)(2). The Court of Appeals properly dispelled any
such concerns by inviting and accepting briefs from both Houses of Congress.
We have long held that Congress is the proper party to defend the validity of a
statute when an agency of government, as a defendant charged with enforcing the
statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.
See Cheng Fan Kwok v. INS, 392 U.S., at 210 , n. 9; United States v. Lovett, 328
U.S. 303 (1946).
G
Political Question
It is also argued that these cases present a nonjusticiable political question
because Chadha is merely challenging Congress' authority under the
30
Separation of Powers
Naturalization Clause, U.S. Const., Art. I, 8, cl. 4, and the Necessary and Proper
Clause, U.S. Const., Art. I, 8, cl. 18. It is argued that Congress' Art. I power "To
establish an uniform Rule of Naturalization," combined with the Necessary and
Proper Clause, grants it unreviewable authority over the regulation of aliens. The
plenary authority of Congress over aliens under Art. I, 8, cl. 4, is not open to
question, but what is [462 U.S. 919, 941] challenged here is whether Congress
has chosen a constitutionally permissible means of implementing that power. As
we made clear in Buckley v. Valeo, 424 U.S. 1 (1976): "Congress has plenary
authority in all cases in which it has substantive legislative jurisdiction,
McCulloch v. Maryland, 4 Wheat. 316 (1819), so long as the exercise of that
authority does not offend some other constitutional restriction." Id., at 132.
A brief review of those factors which may indicate the presence of a
nonjusticiable political question satisfies us that our assertion of jurisdiction over
these cases does no violence to the political question doctrine. As identified in
Baker v. Carr, 369 U.S. 186, 217 (1962), a political question may arise when any
one of the following circumstances is present:
"a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality
of embarrassment from multifarious pronouncements by various departments on
one question."
Congress apparently directs its assertion of nonjusticiability to the first of the
Baker factors by asserting that Chadha's claim is "an assault on the legislative
authority to enact Section 244(c)(2)." Brief for Petitioner in No. 80-2170, p. 48.
But if this turns the question into a political question virtually every challenge to
the constitutionality of a statute would be a political question. Chadha indeed
argues that one House of Congress cannot constitutionally veto the Attorney
General's decision to allow him to remain in this country. No policy underlying
the political question doctrine [462 U.S. 919, 942] suggests that Congress or the
Executive, or both acting in concert and in compliance with Art. I, can decide the
constitutionality of a statute; that is a decision for the courts. 13
Other Baker factors are likewise inapplicable to this case. As we discuss more
fully below, Art. I provides the "judicially discoverable and manageable
standards" of Baker for resolving the question presented by these cases. Those
standards forestall reliance by this Court on nonjudicial "policy determinations"
or any showing of disrespect for a coordinate branch. Similarly, if Chadha's
arguments are accepted, 244(c)(2) cannot stand, and, since the constitutionality of
that statute is for this Court to resolve, there is no possibility of "multifarious
pronouncements" on this question.
31
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It is correct that this controversy may, in a sense, be termed "political." But the
presence of constitutional issues with significant political overtones does not
automatically invoke [462 U.S. 919, 943] the political question doctrine.
Resolution of litigation challenging the constitutional authority of one of the three
branches cannot be evaded by courts because the issues have political
implications in the sense urged by Congress. Marbury v. Madison, 1 Cranch 137
(1803), was also a "political" case, involving as it did claims under a judicial
commission alleged to have been duly signed by the President but not delivered.
But "courts cannot reject as `no law suit' a bona fide controversy as to whether
some action denominated `political' exceeds constitutional authority." Baker v.
Carr, supra, at 217.
In Field v. Clark, 143 U.S. 649 (1892), this Court addressed and resolved the
question whether
"a bill signed by the Speaker of the House of Representatives and by the
President of the Senate, presented to and approved by the President of the United
States, and delivered by the latter to the Secretary of State, as an act passed by
Congress, does not become a law of the United States if it had not in fact been
passed by Congress. . . .
". . . We recognize, on one hand, the duty of this court, from the performance of
which it may not shrink, to give full effect to the provisions of the Constitution
relating to the enactment of laws that are to operate wherever the authority and
jurisdiction of the United States extend. On the other hand, we cannot be
unmindful of the consequences that must result if this court should feel obliged,
in fidelity to the Constitution, to declare that an enrolled bill, on which depend
public and private interests of vast magnitude, and which has been . . . deposited
in the public archives, as an act of Congress, . . . did not become a law." Id., at
669-670 (emphasis in original).
H
The contentions on standing and justiciability have been fully examined, and we
are satisfied the parties are properly before us. The important issues have been
fully briefed and [462 U.S. 919, 944] twice argued, see 458 U.S. 1120 (1982).
The Court's duty in these cases, as Chief Justice Marshall declared in Cohens v.
Virginia, 6 Wheat. 264, 404 (1821), is clear:
"Questions may occur which we would gladly avoid; but we cannot avoid them.
All we can do is, to exercise our best judgment, and conscientiously to perform
our duty."
III
A
We turn now to the question whether action of one House of Congress under
244(c)(2) violates strictures of the Constitution. We begin, of course, with the
presumption that the challenged statute is valid. Its wisdom is not the concern of
32
Separation of Powers
the courts; if a challenged action does not violate the Constitution, it must be
sustained:
"Once the meaning of an enactment is discerned and its constitutionality
determined, the judicial process comes to an end. We do not sit as a committee of
review, nor are we vested with the power of veto." TVA v. Hill, 437 U.S. 153,
194 -195 (1978).
By the same token, the fact that a given law or procedure is efficient, convenient,
and useful in facilitating functions of government, standing alone, will not save it
if it is contrary to the Constitution. Convenience and efficiency are not the
primary objectives - or the hallmarks - of democratic government and our inquiry
is sharpened rather than blunted by the fact that congressional veto provisions are
appearing with increasing frequency in statutes which delegate authority to
executive and independent agencies:
"Since 1932, when the first veto provision was enacted into law, 295
congressional veto-type procedures have been inserted in 196 different statutes as
follows: from 1932 to 1939, five statutes were affected; from 1940-49, nineteen
statutes; between 1950-59, thirty-four statutes; and from 1960-69, forty-nine.
From the year 1970 through 1975, at least one hundred sixty-three such
provisions [462 U.S. 919, 945] were included in eighty-nine laws." Abourezk,
The Congressional Veto: A Contemporary Response to Executive Encroachment
on Legislative Prerogatives, 52 Ind. L. Rev. 323, 324 (1977).
See also Appendix to JUSTICE WHITE's dissent, post, at 1003.
JUSTICE WHITE undertakes to make a case for the proposition that the oneHouse veto is a useful "political invention," post, at 972, and we need not
challenge that assertion. We can even concede this utilitarian argument although
the longrange political wisdom of this "invention" is arguable. It has been
vigorously debated, and it is instructive to compare the views of the protagonists.
See, e. g., Javits & Klein, Congressional Oversight and the Legislative Veto: A
Constitutional Analysis, 52 N. Y. U. L. Rev. 455 (1977), and Martin, The
Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va. L.
Rev. 253 (1982). But policy arguments supporting even useful "political
inventions" are subject to the demands of the Constitution which defines powers
and, with respect to this subject, sets out just how those powers are to be
exercised.
Explicit and unambiguous provisions of the Constitution prescribe and define the
respective functions of the Congress and of the Executive in the legislative
process. Since the precise terms of those familiar provisions are critical to the
resolution of these cases, we set them out verbatim. Article I provides:
"All legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives." Art. I, 1.
(Emphasis added.)
33
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"Every Bill which shall have passed the House of Representatives and the Senate,
shall, before it becomes a law, be presented to the President of the United States .
. . ." Art. I, 7, cl. 2. (Emphasis added.)
"Every Order, Resolution, or Vote to which the Concurrence of the Senate and
House of Representatives may be necessary (except on a question of
Adjournment) [462 U.S. 919, 946] shall be presented to the President of the
United States; and before the Same shall take Effect, shall be approved by him, or
being disapproved by him, shall be repassed by two thirds of the Senate and
House of Representatives, according to the Rules and Limitations prescribed in
the Case of a Bill." Art. I, 7, cl. 3. (Emphasis added.)
These provisions of Art. I are integral parts of the constitutional design for the
separation of powers. We have recently noted that "[t]he principle of separation
of powers was not simply an abstract generalization in the minds of the Framers:
it was woven into the document that they drafted in Philadelphia in the summer
of 1787." Buckley v. Valeo, 424 U.S., at 124 . Just as we relied on the textual
provision of Art. II, 2, cl. 2, to vindicate the principle of separation of powers in
Buckley, we see that the purposes underlying the Presentment Clauses, Art. I, 7,
cls. 2, 3, and the bicameral requirement of Art. I, 1, and 7, cl. 2, guide our
resolution of the important question presented in these cases. The very structure
of the Articles delegating and separating powers under Arts. I, II, and III
exemplifies the concept of separation of powers, and we now turn to Art. I.
B
The Presentment Clauses
The records of the Constitutional Convention reveal that the requirement that all
legislation be presented to the President before becoming law was uniformly
accepted by the Framers. 14 Presentment to the President and the Presidential
[462 U.S. 919, 947] veto were considered so imperative that the draftsmen took
special pains to assure that these requirements could not be circumvented. During
the final debate on Art. I, 7, cl. 2, James Madison expressed concern that it might
easily be evaded by the simple expedient of calling a proposed law a "resolution"
or "vote" rather than a "bill." 2 Farrand 301-302. As a consequence, Art. I, 7, cl.
3, supra, at 945-946, was added. 2 Farrand 304-305.
The decision to provide the President with a limited and qualified power to
nullify proposed legislation by veto was based on the profound conviction of the
Framers that the powers conferred on Congress were the powers to be most
carefully circumscribed. It is beyond doubt that lawmaking was a power to be
shared by both Houses and the President. In The Federalist No. 73 (H. Lodge ed.
1888), Hamilton focused on the President's role in making laws:
"If even no propensity had ever discovered itself in the legislative body to invade
the rights of the Executive, the rules of just reasoning and theoretic propriety
would of themselves teach us that the one ought not to be left to the mercy of the
other, but ought to possess a constitutional and effectual power of self-defence."
Id., at 458.
34
Separation of Powers
See also The Federalist No. 51. In his Commentaries on the Constitution, Joseph
Story makes the same point. 1 J. Story, Commentaries on the Constitution of the
United States 614-615 (3d ed. 1858).
The President's role in the lawmaking process also reflects the Framers' careful
efforts to check whatever propensity a particular Congress might have to enact
oppressive, improvident, [462 U.S. 919, 948] or ill-considered measures. The
President's veto role in the legislative process was described later during public
debate on ratification:
"It establishes a salutary check upon the legislative body, calculated to guard the
community against the effects of faction, precipitancy, or of any impulse
unfriendly to the public good, which may happen to influence a majority of that
body.
". . . The primary inducement to conferring the power in question upon the
Executive is, to enable him to defend himself; the secondary one is to increase the
chances in favor of the community against the passing of bad laws, through haste,
inadvertence, or design." The Federalist No. 73, supra, at 458 (A. Hamilton).
See also The Pocket Veto Case, 279 U.S. 655, 678 (1929); Myers v. United
States, 272 U.S. 52, 123 (1926). The Court also has observed that the
Presentment Clauses serve the important purpose of assuring that a "national"
perspective is grafted on the legislative process:
"The President is a representative of the people just as the members of the Senate
and of the House are, and it may be, at some times, on some subjects, that the
President elected by all the people is rather more representative of them all than
are the members of either body of the Legislature whose constituencies are local
and not countrywide . . . ." Myers v. United States, supra, at 123.
C
Bicameralism
The bicameral requirement of Art. I, 1, 7, was of scarcely less concern to the
Framers than was the Presidential veto and indeed the two concepts are
interdependent. By providing that no law could take effect without the
concurrence of the prescribed majority of the Members of both Houses, the
Framers reemphasized their belief, already remarked [462 U.S. 919, 949] upon
in connection with the Presentment Clauses, that legislation should not be enacted
unless it has been carefully and fully considered by the Nation's elected officials.
In the Constitutional Convention debates on the need for a bicameral legislature,
James Wilson, later to become a Justice of this Court, commented:
"Despotism comes on mankind in different shapes. sometimes in an Executive,
sometimes in a military, one. Is there danger of a Legislative despotism? Theory
& practice both proclaim it. If the Legislative authority be not restrained, there
can be neither liberty nor stability; and it can only be restrained by dividing it
within itself, into distinct and independent branches. In a single house there is no
35
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check, but the inadequate one, of the virtue & good sense of those who compose
it." 1 Farrand 254.
Hamilton argued that a Congress comprised of a single House was antithetical to
the very purposes of the Constitution. Were the Nation to adopt a Constitution
providing for only one legislative organ, he warned:
"[W]e shall finally accumulate, in a single body, all the most important
prerogatives of sovereignty, and thus entail upon our posterity one of the most
execrable forms of government that human infatuation ever contrived. Thus we
should create in reality that very tyranny which the adversaries of the new
Constitution either are, or affect to be, solicitous to avert." The Federalist No. 22,
p. 135 (H. Lodge ed. 1888).
This view was rooted in a general skepticism regarding the fallibility of human
nature later commented on by Joseph Story:
"Public bodies, like private persons, are occasionally under the dominion of
strong passions and excitements; impatient, irritable, and impetuous. . . . If [a
legislature] [462 U.S. 919, 950] feels no check but its own will, it rarely has the
firmness to insist upon holding a question long enough under its own view, to see
and mark it in all its bearings and relations on society." 1 Story, supra, at 383384.
These observations are consistent with what many of the Framers expressed, none
more cogently than Madison in pointing up the need to divide and disperse power
in order to protect liberty:
"In republican government, the legislative authority necessarily predominates.
The remedy for this inconveniency is to divide the legislature into different
branches; and to render them, by different modes of election and different
principles of action, as little connected with each other as the nature of their
common functions and their common dependence on the society will admit." The
Federalist No. 51, p. 324 (H. Lodge ed. 1888) (sometimes attributed to "Hamilton
or Madison" but now generally attributed to Madison).
See also The Federalist No. 62.
However familiar, it is useful to recall that apart from their fear that special
interests could be favored at the expense of public needs, the Framers were also
concerned, although not of one mind, over the apprehensions of the smaller
states. Those states feared a commonality of interest among the larger states
would work to their disadvantage; representatives of the larger states, on the other
hand, were skeptical of a legislature that could pass laws favoring a minority of
the people. See 1 Farrand 176-177, 484-491. It need hardly be repeated here that
the Great Compromise, under which one House was viewed as representing the
people and the other the states, allayed the fears of both the large and small states.
15 [462 U.S. 919, 951]
36
Separation of Powers
We see therefore that the Framers were acutely conscious that the bicameral
requirement and the Presentment Clauses would serve essential constitutional
functions. The President's participation in the legislative process was to protect
the Executive Branch from Congress and to protect the whole people from
improvident laws. The division of the Congress into two distinctive bodies
assures that the legislative power would be exercised only after opportunity for
full study and debate in separate settings. The President's unilateral veto power, in
turn, was limited by the power of two-thirds of both Houses of Congress to
overrule a veto thereby precluding final arbitrary action of one person. See id., at
99-104. It emerges clearly that the prescription for legislative action in Art. I, 1,
7, represents the Framers' decision that the legislative power of the Federal
Government be exercised in accord with a single, finely wrought and
exhaustively considered, procedure.
IV
The Constitution sought to divide the delegated powers of the new Federal
Government into three defined categories, Legislative, Executive, and Judicial, to
assure, as nearly as possible, that each branch of government would confine itself
to its assigned responsibility. The hydraulic pressure inherent within each of the
separate Branches to exceed the outer limits of its power, even to accomplish
desirable objectives, must be resisted.
Although not "hermetically" sealed from one another, Buckley v. Valeo, 424
U.S., at 121 , the powers delegated to the three Branches are functionally
identifiable. When any Branch acts, it is presumptively exercising the power the
Constitution has delegated to it. See J. W. Hampton & Co. v. United States, 276
U.S. 394, 406 (1928). When the Executive acts, he presumptively acts in an
executive or administrative capacity as defined in Art. II. And when, as here, [462
U.S. 919, 952] one House of Congress purports to act, it is presumptively acting
within its assigned sphere.
Beginning with this presumption, we must nevertheless establish that the
challenged action under 244(c)(2) is of the kind to which the procedural
requirements of Art. I, 7, apply. Not every action taken by either House is subject
to the bicameralism and presentment requirements of Art. I. See infra, at 955, and
nn. 20, 21. Whether actions taken by either House are, in law and fact, an
exercise of legislative power depends not on their form but upon "whether they
contain matter which is properly to be regarded as legislative in its character and
effect." S. Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897).
Examination of the action taken here by one House pursuant to 244(c)(2) reveals
that it was essentially legislative in purpose and effect. In purporting to exercise
power defined in Art. I, 8, cl. 4, to "establish an uniform Rule of Naturalization,"
the House took action that had the purpose and effect of altering the legal rights,
duties, and relations of persons, including the Attorney General, Executive
Branch officials and Chadha, all outside the Legislative Branch. Section
244(c)(2) purports to authorize one House of Congress to require the Attorney
General to deport an individual alien whose deportation otherwise would be
37
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canceled under 244. The one-House veto operated in these cases to overrule the
Attorney General and mandate Chadha's deportation; absent the House action,
Chadha would remain in the United States. Congress has acted and its action has
altered Chadha's status.
The legislative character of the one-House veto in these cases is confirmed by the
character of the congressional action it supplants. Neither the House of
Representatives nor the Senate contends that, absent the veto provision in
244(c)(2), either of them, or both of them acting together, could effectively
require the Attorney General to deport an alien once the Attorney General, in the
exercise of legislatively [462 U.S. 919, 953] delegated authority, 16 had
determined the alien should remain in the United States. Without the challenged
provision in 244(c)(2), this could have been achieved, if at all, only [462 U.S.
919, 954] by legislation requiring deportation. 17 Similarly, a veto by one
House of Congress under 244(c)(2) cannot be justified as an attempt at amending
the standards set out in 244(a)(1), or as a repeal of 244 as applied to Chadha.
Amendment and repeal of statutes, no less than enactment, must conform with
Art. I. 18
The nature of the decision implemented by the one-House veto in these cases
further manifests its legislative character. After long experience with the clumsy,
time-consuming private bill procedure, Congress made a deliberate choice to
delegate to the Executive Branch, and specifically to the Attorney General, the
authority to allow deportable aliens to remain in this country in certain specified
circumstances. It is not disputed that this choice to delegate authority is precisely
the kind of decision that can be implemented only in accordance with the
procedures set out in Art. I. Disagreement with the Attorney General's decision
on Chadha's deportation - that is, Congress' decision to deport Chadha - no less
than Congress' original choice to delegate to the Attorney General the authority to
make that decision, involves determinations of policy that Congress can
implement in only one way; bicameral passage followed by presentment to the
[462 U.S. 919, 955] President. Congress must abide by its delegation of
authority until that delegation is legislatively altered or revoked. 19
Finally, we see that when the Framers intended to authorize either House of
Congress to act alone and outside of its prescribed bicameral legislative role, they
narrowly and precisely defined the procedure for such action. There are four
provisions in the Constitution, 20 explicit and unambiguous, by which one House
may act alone with the unreviewable force of law, not subject to the President's
veto:
(a) The House of Representatives alone was given the power to initiate
impeachments. Art. I, 2, cl. 5;
(b) The Senate alone was given the power to conduct trials following
impeachment on charges initiated by the House and to convict following trial.
Art. I, 3, cl. 6;
38
Separation of Powers
(c) The Senate alone was given final unreviewable power to approve or to
disapprove Presidential appointments. Art. II, 2, cl. 2;
(d) The Senate alone was given unreviewable power to ratify treaties negotiated
by the President. Art. II, 2, cl. 2.
Clearly, when the Draftsmen sought to confer special powers on one House,
independent of the other House, or of the President, they did so in explicit,
unambiguous terms. 21 [462 U.S. 919, 956] These carefully defined exceptions
from presentment and bicameralism underscore the difference between the
legislative functions of Congress and other unilateral but important and binding
one-House acts provided for in the Constitution. These exceptions are narrow,
explicit, and separately justified; none of them authorize the action challenged
here. On the contrary, they provide further support for the conclusion that
congressional authority is not to be implied and for the conclusion that the veto
provided for in 244(c)(2) is not authorized by the constitutional design of the
powers of the Legislative Branch.
Since it is clear that the action by the House under 244(c)(2) was not within any
of the express constitutional exceptions authorizing one House to act alone, and
equally [462 U.S. 919, 957] clear that it was an exercise of legislative power,
that action was subject to the standards prescribed in Art. I. 22 The bicameral
requirement, the Presentment Clauses, the President's veto, and Congress' power
to override a veto were intended to erect enduring checks on each Branch and to
protect the people from the improvident exercise of power by mandating certain
prescribed steps. To preserve those [462 U.S. 919, 958] checks, and maintain
the separation of powers, the carefully defined limits on the power of each
Branch must not be eroded. To accomplish what has been attempted by one
House of Congress in this case requires action in conformity with the express
procedures of the Constitution's prescription for legislative action: passage by a
majority of both Houses and presentment to the President. 23
The veto authorized by 244(c)(2) doubtless has been in many respects a
convenient shortcut; the "sharing" with the Executive by Congress of its authority
over aliens in this manner is, on its face, an appealing compromise. In purely
practical terms, it is obviously easier for action to be taken by one House without
submission to the President; but it is crystal [462 U.S. 919, 959] clear from the
records of the Convention, contemporaneous writings and debates, that the
Framers ranked other values higher than efficiency. The records of the
Convention and debates in the states preceding ratification underscore the
common desire to define and limit the exercise of the newly created federal
powers affecting the states and the people. There is unmistakable expression of a
determination that legislation by the national Congress be a step-by-step,
deliberate and deliberative process.
The choices we discern as having been made in the Constitutional Convention
impose burdens on governmental processes that often seem clumsy, inefficient,
even unworkable, but those hard choices were consciously made by men who had
lived under a form of government that permitted arbitrary governmental acts to
39
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go unchecked. There is no support in the Constitution or decisions of this Court
for the proposition that the cumbersomeness and delays often encountered in
complying with explicit constitutional standards may be avoided, either by the
Congress or by the President. See Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952). With all the obvious flaws of delay, untidiness, and potential for
abuse, we have not yet found a better way to preserve freedom than by making
the exercise of power subject to the carefully crafted restraints spelled out in the
Constitution.
V
We hold that the congressional veto provision in 244(c)(2) is severable from the
Act and that it is unconstitutional. Accordingly, the judgment of the Court of
Appeals is
Affirmed.
UNITED STATES v. NIXON, 418 U.S. 683 (1974)
No. 73-1766.
Argued July 8, 1974.
Decided July 24, 1974. *
[ Footnote * ] Together with No. 73-1834, Nixon, President of the United States
v. United States, also on certiorari before judgment to the same court.
Following indictment alleging violation of federal statutes by certain staff
members of the White House and political supporters of the President, the Special
Prosecutor filed a motion under Fed. Rule Crim. Proc. 17 (c) for a subpoena
duces tecum for the production before trial of certain tapes and documents
relating to precisely identified conversations and meetings between the President
and others. The President, claiming executive privilege, filed a motion to quash
the subpoena. The District Court, after treating the subpoenaed material as
presumptively privileged, concluded that the Special Prosecutor had made a
sufficient showing to rebut the presumption and that the requirements of Rule 17
(c) had been satisfied. The court thereafter issued an order for an in camera
examination of the subpoenaed material, having rejected the President's
contentions (a) that the dispute between him and the Special Prosecutor was
nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked
authority to review the President's assertion of executive privilege. The court
stayed its order pending appellate review, which the President then sought in the
Court of Appeals. The Special Prosecutor then filed in this Court a petition for a
writ of certiorari before judgment (No. 73-1766) and the President filed a crosspetition for such a writ challenging the grand-jury action (No. 73-1834). The
Court granted both petitions. Held:
40
Separation of Powers
1. The District Court's order was appealable as a "final" order under 28 U.S.C.
1291, was therefore properly "in" the Court of Appeals, 28 U.S.C. 1254, when the
petition for certiorari before judgment was filed in this Court, and is now properly
before this Court for review. Although such an order is normally not final and
subject to appeal, an exception is made in a "limited class of [418 U.S. 683, 684]
cases where denial of immediate review would render impossible any review
whatsoever of an individual's claims," United States v. Ryan, 402 U.S. 530, 533 .
Such an exception is proper in the unique circumstances of this case where it
would be inappropriate to subject the President to the procedure of securing
review by resisting the order and inappropriate to require that the District Court
proceed by a traditional contempt citation in order to provide appellate review.
Pp. 690-692.
2. The dispute between the Special Prosecutor and the President presents a
justiciable controversy. Pp. 692-697.
(a) The mere assertion of an "intra-branch dispute," without more, does not defeat
federal jurisdiction. United States v. ICC, 337 U.S. 426 . P. 693.
(b) The Attorney General by regulation has conferred upon the Special Prosecutor
unique tenure and authority to represent the United States and has given the
Special Prosecutor explicit power to contest the invocation of executive privilege
in seeking evidence deemed relevant to the performance of his specially
delegated duties. While the regulation remains in effect, the Executive Branch is
bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 . Pp.
694-696.
(c) The action of the Special Prosecutor within the scope of his express authority
seeking specified evidence preliminarily determined to be relevant and admissible
in the pending criminal case, and the President's assertion of privilege in
opposition thereto, present issues "of a type which are traditionally justiciable,"
United States v. ICC, supra, at 430, and the fact that both litigants are officers of
the Executive Branch is not a bar to justiciability. Pp. 696-697.
3. From this Court's examination of the material submitted by the Special
Prosecutor in support of his motion for the subpoena, much of which is under
seal, it is clear that the District Court's denial of the motion to quash comported
with Rule 17 (c) and that the Special Prosecutor has made a sufficient showing to
justify a subpoena for production before trial. Pp. 697-702.
4. Neither the doctrine of separation of powers nor the generalized need for
confidentiality of high-level communications, without more, can sustain an
absolute, unqualified Presidential privilege of immunity from judicial process
under all circumstances. See, e. g., Marbury v. Madison, 1 Cranch 137, 177;
Baker v. Carr, 369 U.S. 186, 211 . Absent a claim of need to protect military,
diplomatic, or sensitive national security secrets, the confidentiality of [418 U.S.
683, 685] Presidential communications is not significantly diminished by
producing material for a criminal trial under the protected conditions of in camera
inspection, and any absolute executive privilege under Art. II of the Constitution
41
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would plainly conflict with the function of the courts under the Constitution. Pp.
703-707.
5. Although the courts will afford the utmost deference to Presidential acts in the
performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190,
191-192 (No. 14,694), when a claim of Presidential privilege as to materials
subpoenaed for use in a criminal trial is based, as it is here, not on the ground that
military or diplomatic secrets are implicated, but merely on the ground of a
generalized interest in confidentiality, the President's generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in a pending
criminal trial and the fundamental demands of due process of law in the fair
administration of criminal justice. Pp. 707-713.
6. On the basis of this Court's examination of the record, it cannot be concluded
that the District Court erred in ordering in camera examination of the subpoenaed
material, which shall now forthwith be transmitted to the District Court. Pp. 713714.
7. Since a President's communications encompass a vastly wider range of
sensitive material than would be true of an ordinary individual, the public interest
requires that Presidential confidentiality be afforded the greatest protection
consistent with the fair administration of justice, and the District Court has a
heavy responsibility to ensure that material involving Presidential conversations
irrelevant to or inadmissible in the criminal prosecution be accorded the high
degree of respect due a President and that such material be returned under seal to
its lawful custodian. Until released to the Special Prosecutor no in camera
material is to be released to anyone. Pp. 714-716.
No. 73-1766, 377 F. Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as
improvidently granted.
BURGER, C. J., delivered the opinion of the Court, in which all Members joined
except REHNQUIST, J., who took no part in the consideration or decision of the
cases.
Leon Jaworski and Philip A. Lacovara argued the cause and filed briefs for the
United States in both cases.
James D. St. Clair argued the cause for the President [418 U.S. 683, 686] in both
cases. With him on the briefs were Charles Alan Wright, Leonard Garment,
Michael A. Sterlacci, Jerome J. Murphy, Loren A. Smith, James R. Prochnow,
Theodore J. Garrish, James J. Tansey, and Larry G. Gutterridge. William Snow
Frates, Andrew C. Hall, Spencer H. Boyer, and Henry H. Jones filed a brief for
respondent Ehrlichman in No. 73-1766. John M. Bray filed a brief for respondent
Strachan in No. 73-1766.Fn
Fn [418 U.S. 683, 686] Norman Dorsen and Melvin L Wulf filed a brief for the
American Civil Liberties Union as amicus curiae urging affirmance of the
District Court judgment.
42
Separation of Powers
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This litigation presents for review the denial of a motion, filed in the District
Court on behalf of the President of the United States, in the case of United States
v. Mitchell (D.C. Crim. No. 74-110), to quash a third-party subpoena duces
tecum issued by the United States District Court for the District of Columbia,
pursuant to Fed. Rule Crim. Proc. 17 (c). The subpoena directed the President to
produce certain tape recordings and documents relating to his conversations with
aides and advisers. The court rejected the President's claims of absolute executive
privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule
17 (c). The President appealed to the Court of Appeals. We granted both the
United States' petition for certiorari before judgment (No. 73-1766), 1 and also
the President's cross-petition for certiorari [418 U.S. 683, 687] before judgment
(No. 73-1834), 2 because of the public importance of the issues presented and the
need for their prompt resolution. 417 U.S. 927 and 960 (1974).
On March 1, 1974, a grand jury of the United States District Court for the District
of Columbia returned an indictment charging seven named individuals 3 with
various offenses, including conspiracy to defraud the United States and to
obstruct justice. Although he was not designated as such in the indictment, the
grand jury named the President, among others, as an unindicted coconspirator. 4
On April 18, 1974, upon motion of the Special [418 U.S. 683, 688] Prosecutor,
see n. 8, infra, a subpoena duces tecum was issued pursuant to Rule 17 (c) to the
President by the United States District Court and made returnable on May 2,
1974. This subpoena required the production, in advance of the September 9 trial
date, of certain tapes, memoranda, papers, transcripts, or other writings relating to
certain precisely identified meetings between the President and others. 5 The
Special Prosecutor was able to fix the time, place, and persons present at these
discussions because the White House daily logs and appointment records had
been delivered to him. On April 30, the President publicly released edited
transcripts of 43 conversations; portions of 20 conversations subject to subpoena
in the present case were included. On May 1, 1974, the President's counsel filed a
"special appearance" and a motion to quash the subpoena under Rule 17 (c). This
motion was accompanied by a formal claim of privilege. At a subsequent hearing,
6 further motions to expunge the grand jury's action naming the President as an
unindicted coconspirator and for protective orders against the disclosure of that
information were filed or raised orally by counsel for the President.
On May 20, 1974, the District Court denied the motion to quash and the motions
to expunge and for protective orders. 377 F. Supp. 1326. It further ordered "the
President or any subordinate officer, official, or employee with custody or control
of the documents or [418 U.S. 683, 689] objects subpoenaed," id., at 1331, to
deliver to the District Court, on or before May 31, 1974, the originals of all
subpoenaed items, as well as an index and analysis of those items, together with
tape copies of those portions of the subpoenaed recordings for which transcripts
had been released to the public by the President on April 30. The District Court
rejected jurisdictional challenges based on a contention that the dispute was
nonjusticiable because it was between the Special Prosecutor and the Chief
43
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Executive and hence "intra-executive" in character; it also rejected the contention
that the Judiciary was without authority to review an assertion of executive
privilege by the President. The court's rejection of the first challenge was based
on the authority and powers vested in the Special Prosecutor by the regulation
promulgated by the Attorney General; the court concluded that a justiciable
controversy was presented. The second challenge was held to be foreclosed by
the decision in Nixon v. Sirica, 159 U.S. App. D.C. 58, 487 F.2d 700 (1973).
The District Court held that the judiciary, not the President, was the final arbiter
of a claim of executive privilege. The court concluded that, under the
circumstances of this case, the presumptive privilege was overcome by the
Special Prosecutor's prima facie "demonstration of need sufficiently compelling
to warrant judicial examination in chambers . . . ." 377 F. Supp., at 1330. The
court held, finally, that the Special Prosecutor had satisfied the requirements of
Rule 17 (c). The District Court stayed its order pending appellate review on
condition that review was sought before 4 p. m., May 24. The court further
provided that matters filed under seal remain under seal when transmitted as part
of the record.
On May 24, 1974, the President filed a timely notice of appeal from the District
Court order, and the certified record from the District Court was docketed in the
United [418 U.S. 683, 690] States Court of Appeals for the District of Columbia
Circuit. On the same day, the President also filed a petition for writ of mandamus
in the Court of Appeals seeking review of the District Court order.
Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a
writ of certiorari before judgment. On May 31, the petition was granted with an
expedited briefing schedule. 417 U.S. 927 . On June 6, the President filed, under
seal, a cross-petition for writ of certiorari before judgment. This cross-petition
was granted June 15, 1974, 417 U.S. 960 , and the case was set for argument on
July 8, 1974.
I
JURISDICTION
The threshold question presented is whether the May 20, 1974, order of the
District Court was an appealable order and whether this case was properly "in"
the Court of Appeals when the petition for certiorari was filed in this Court. 28
U.S.C. 1254. The Court of Appeals' jurisdiction under 28 U.S.C. 1291
encompasses only "final decisions of the district courts." Since the appeal was
timely filed and all other procedural requirements were met, the petition is
properly before this Court for consideration if the District Court order was final.
28 U.S.C. 1254 (1), 2101 (e).
The finality requirements of 28 U.S.C. 1291 embodies a strong congressional
policy against piecemeal reviews, and against obstructing or impeding an
ongoing judicial proceeding by interlocutory appeals. See, e. g., Cobbledick v.
United States, 309 U.S. 323, 324 -326 (1940). This requirement ordinarily
promotes judicial efficiency and hastens the ultimate termination of litigation. In
44
Separation of Powers
applying this principle to an order denying a motion to quash and requiring the
production of evidence pursuant [418 U.S. 683, 691] to a subpoena duces tecum,
it has been repeatedly held that the order is not final and hence not appealable.
United States v. Ryan, 402 U.S. 530, 532 (1971); Cobbledick v. United States,
supra; Alexander v. United States, 201 U.S. 117 (1906). This Court has
"consistently held that the necessity for expedition in the administration of the
criminal law justifies putting one who seeks to resist the production of desired
information to a choice between compliance with a trial court's order to produce
prior to any review of that order, and resistance to that order with the concomitant
possibility of an adjudication of contempt if his claims are rejected on appeal."
United States v. Ryan, supra, at 533.
The requirement of submitting to contempt, however, is not without exception
and in some instances the purposes underlying the finality rule require a different
result. For example, in Perlman v. United States, 247 U.S. 7 (1918), a subpoena
had been directed to a third party requesting certain exhibits; the appellant, who
owned the exhibits, sought to raise a claim of privilege. The Court held an order
compelling production was appealable because it was unlikely that the third party
would risk a contempt citation in order to allow immediate review of the
appellant's claim of privilege. Id., at 12-13. That case fell within the "limited class
of cases where denial of immediate review would render impossible any review
whatsoever of an individual's claims." United States v. Ryan, supra, at 533.
Here too, the traditional contempt avenue to immediate appeal is peculiarly
inappropriate due to the unique setting in which the question arises. To require a
President of the United States to place himself in the posture of disobeying an
order of a court merely to trigger the procedural mechanism for review of the
ruling would be [418 U.S. 683, 692]
unseemly, and would present an
unnecessary occasion for constitutional confrontation between two branches of
the Government. Similarly, a federal judge should not be placed in the posture of
issuing a citation to a President simply in order to invoke review. The issue
whether a President can be cited for contempt could itself engender protracted
litigation, and would further delay both review on the merits of his claim of
privilege and the ultimate termination of the underlying criminal action for which
his evidence is sought. These considerations lead us to conclude that the order of
the District Court was an appealable order. The appeal from that order was
therefore properly "in" the Court of Appeals, and the case is now properly before
this Court on the writ of certiorari before judgment. 28 U.S.C. 1254; 28 U.S.C.
2101 (e). Gay v. Ruff, 292 U.S. 25, 30 (1934). 7
II
JUSTICIABILITY
In the District Court, the President's counsel argued that the court lacked
jurisdiction to issue the subpoena because the matter was an intra-branch dispute
between a subordinate and superior officer of the Executive Branch and hence not
subject to judicial resolution. That argument has been renewed in this Court with
45
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emphasis on the contention that the dispute does not present a "case" or
"controversy" which can be adjudicated in the federal courts. The President's
counsel argues that the federal courts should not intrude into areas committed to
the other branches of Government. [418 U.S. 683, 693] He views the present
dispute as essentially a "jurisdictional" dispute within the Executive Branch
which he analogizes to a dispute between two congressional committees. Since
the Executive Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case, Confiscation Cases, 7 Wall. 454 (1869); United
States v. Cox, 342 F.2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauberg,
381 U.S. 935 (1965), it is contended that a President's decision is final in
determining what evidence is to be used in a given criminal case. Although his
counsel concedes that the President has delegated certain specific powers to the
Special Prosecutor, he has not "waived nor delegated to the Special Prosecutor
the President's duty to claim privilege as to all materials . . . which fall within the
President's inherent authority to refuse to disclose to any executive officer." Brief
for the President 42. The Special Prosecutor's demand for the items therefore
presents, in the view of the President's counsel, a political question under Baker
v. Carr, 369 U.S. 186 (1962), since it involves a "textually demonstrable" grant of
power under Art. II.
The mere assertion of a claim of an "intra-branch dispute," without more, has
never operated to defeat federal jurisdiction; justiciability does not depend on
such a surface inquiry. In United States v. ICC, 337 U.S. 426 (1949), the Court
observed, "courts must look behind names that symbolize the parties to determine
whether a justiciable case or controversy is presented." Id., at 430. See also
Powell v. McCormack, 395 U.S. 486 (1969); ICC v. Jersey City, 322 U.S. 503
(1944); United States ex rel. Chapman v. FPC, 345 U.S. 153 (1953); Secretary of
Agriculture v. United States, 347 U.S. 645 (1954); FMB v. Isbrandtsen Co., 356
U.S. 481, 483 n. 2 (1958); United States v. Marine Bancorporation, ante, p. 602;
and United States v. Connecticut National Bank, ante, p. 656. [418 U.S. 683, 694]
Our starting point is the nature of the proceeding for which the evidence is sought
- here a pending criminal prosecution. It is a judicial proceeding in a federal court
alleging violation of federal laws and is brought in the name of the United States
as sovereign. Berger v. United States, 295 U.S. 78, 88 (1935). Under the authority
of Art. II, 2, Congress has vested in the Attorney General the power to conduct
the criminal litigation of the United States Government. 28 U.S.C. 516. It has also
vested in him the power to appoint subordinate officers to assist him in the
discharge of his duties. 28 U.S.C. 509, 510, 515, 533. Acting pursuant to those
statutes, the Attorney General has delegated the authority to represent the United
States in these particular matters to a Special Prosecutor with unique authority
and tenure. 8 The regulation gives the [418 U.S. 683, 695] Special Prosecutor
explicit power to contest the invocation of executive privilege in the process of
seeking evidence deemed relevant to the performance of these specially delegated
duties. 9 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805.
46
Separation of Powers
So long as this regulation is extant it has the force of law. In United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260 (1954), regulations of the Attorney
General delegated certain of his discretionary powers to the Board [418 U.S. 683,
696] of Immigration Appeals and required that Board to exercise its own
discretion on appeals in deportation cases. The Court held that so long as the
Attorney General's regulations remained operative, he denied himself the
authority to exercise the discretion delegated to the Board even though the
original authority was his and he could reassert it by amending the regulations.
Service v. Dulles, 354 U.S. 363, 388 (1957), and Vitarelli v. Seaton, 359 U.S. 535
(1959), reaffirmed the basic holding of Accardi.
Here, as in Accardi, it is theoretically possible for the Attorney General to amend
or revoke the regulation defining the Special Prosecutor's authority. But he has
not done so. 10 So long as this regulation remains in force the Executive Branch
is bound by it, and indeed the United States as the sovereign composed of the
three branches is bound to respect and to enforce it. Moreover, the delegation of
authority to the Special Prosecutor in this case is not an ordinary delegation by
the Attorney General to a subordinate officer: with the authorization of the
President, the Acting Attorney General provided in the regulation that the Special
Prosecutor was not to be removed without the "consensus" of eight designated
leaders of Congress. N. 8, supra.
The demands of and the resistance to the subpoena present an obvious
controversy in the ordinary sense, but that alone is not sufficient to meet
constitutional standards. In the constitutional sense, controversy means more than
disagreement and conflict; rather it means the kind of controversy courts
traditionally resolve. Here [418 U.S. 683, 697] at issue is the production or
nonproduction of specified evidence deemed by the Special Prosecutor to be
relevant and admissible in a pending criminal case. It is sought by one official of
the Executive Branch within the scope of his express authority; it is resisted by
the Chief Executive on the ground of his duty to preserve the confidentiality of
the communications of the President. Whatever the correct answer on the merits,
these issues are "of a type which are traditionally justiciable." United States v.
ICC, 337 U.S., at 430 . The independent Special Prosecutor with his asserted
need for the subpoenaed material in the underlying criminal prosecution is
opposed by the President with his steadfast assertion of privilege against
disclosure of the material. This setting assures there is "that concrete adverseness
which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." Baker v. Carr, 369
U.S., at 204 . Moreover, since the matter is one arising in the regular course of a
federal criminal prosecution, it is within the traditional scope of Art. III power.
Id., at 198.
In light of the uniqueness of the setting in which the conflict arises, the fact that
both parties are officers of the Executive Branch cannot be viewed as a barrier to
justiciability. It would be inconsistent with the applicable law and regulation, and
the unique facts of this case to conclude other than that the Special Prosecutor has
47
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standing to bring this action and that a justiciable controversy is presented for
decision.
III
RULE 17 (c)
The subpoena duces tecum is challenged on the ground that the Special
Prosecutor failed to satisfy the requirements of Fed. Rule Crim. Proc. 17 (c),
which governs [418 U.S. 683, 698] the issuance of subpoenas duces tecum in
federal criminal proceedings. If we sustained this challenge, there would be no
occasion to reach the claim of privilege asserted with respect to the subpoenaed
material. Thus we turn to the question whether the requirements of Rule 17 (c)
have been satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public Utilities,
304 U.S. 61, 64 (1938); Ashwander v. TVA, 297 U.S. 288, 346 -347 (1936)
(Brandeis, J., concurring).
Rule 17 (c) provides:
"A subpoena may also command the person to whom it is directed to produce the
books, papers, documents or other objects designated therein. The court on
motion made promptly may quash or modify the subpoena if compliance would
be unreasonable or oppressive. The court may direct that books, papers,
documents or objects designated in the subpoena be produced before the court at
a time prior to the trial or prior to the time when they are to be offered in
evidence and may upon their production permit the books, papers, documents or
objects or portions thereof to be inspected by the parties and their attorneys."
A subpoena for documents may be quashed if their production would be
"unreasonable or oppressive," but not otherwise. The leading case in this Court
interpreting this standard is Bowman Dairy Co. v. United States, 341 U.S. 214
(1951). This case recognized certain fundamental characteristics of the subpoena
duces tecum in criminal cases: (1) it was not intended to provide a means of
discovery for criminal cases, id., at 220; (2) its chief innovation was to expedite
the trial by providing a time and place before trial for the inspection of [418 U.S.
683, 699] subpoenaed materials, 11 ibid. As both parties agree, cases decided in
the wake of Bowman have generally followed Judge Weinfeld's formulation in
United States v. Iozia, 13 F. R. D. 335, 338 (SDNY 1952), as to the required
showing. Under this test, in order to require production prior to trial, the moving
party must show: (1) that the documents are evidentiary 12 and relevant; (2) that
they are not otherwise procurable reasonably in advance of trial by exercise of
due diligence; (3) that the party cannot properly prepare for trial without such
production and inspection in advance of trial and that the failure to obtain such
inspection may tend unreasonably to delay the trial; and (4) that [418 U.S. 683,
700] the application is made in good faith and is not intended as a general
"fishing expedition."
Against this background, the Special Prosecutor, in order to carry his burden,
must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own
review of the record necessarily affords a less comprehensive view of the total
48
Separation of Powers
situation than was available to the trial judge and we are unwilling to conclude
that the District Court erred in the evaluation of the Special Prosecutor's showing
under Rule 17 (c). Our conclusion is based on the record before us, much of
which is under seal. Of course, the contents of the subpoenaed tapes could not at
that stage be described fully by the Special Prosecutor, but there was a sufficient
likelihood that each of the tapes contains conversations relevant to the offenses
charged in the indictment. United States v. Gross, 24 F. R. D. 138 (SDNY 1959).
With respect to many of the tapes, the Special Prosecutor offered the sworn
testimony or statements of one or more of the participants in the conversations as
to what was said at the time. As for the remainder of the tapes, the identity of the
participants and the time and place of the conversations, taken in their total
context, permit a rational inference that at least part of the conversations relate to
the offenses charged in the indictment.
We also conclude there was a sufficient preliminary showing that each of the
subpoenaed tapes contains evidence admissible with respect to the offenses
charged in the indictment. The most cogent objection to the admissibility of the
taped conversations here at issue is that they are a collection of out-of-court
statements by declarants who will not be subject to cross-examination and that
the statements are therefore inadmissible hearsay. Here, however, most of the
tapes apparently contain conversations [418 U.S. 683, 701] to which one or
more of the defendants named in the indictment were party. The hearsay rule
does not automatically bar all out-of-court statements by a defendant in a criminal
case. 13 Declarations by one defendant may also be admissible against other
defendants upon a sufficient showing, by independent evidence, 14 of a
conspiracy among one or more other defendants and the declarant and if the
declarations at issue were in furtherance of that conspiracy. The same is true of
declarations of coconspirators who are not defendants in the case on trial. Dutton
v. Evans, 400 U.S. 74, 81 (1970). Recorded conversations may also be admissible
for the limited purpose of impeaching the credibility of any defendant who
testifies or any other coconspirator who testifies. Generally, the need for evidence
to impeach witnesses is insufficient to require its production in advance of trial.
See, e. g., United States v. Carter, 15 F. R. D. 367, [418 U.S. 683, 702] 371 (DC
1954). Here, however, there are other valid potential evidentiary uses for the
same material, and the analysis and possible transcription of the tapes may take a
significant period of time. Accordingly, we cannot conclude that the District
Court erred in authorizing the issuance of the subpoena duces tecum.
Enforcement of a pretrial subpoena duces tecum must necessarily be committed
to the sound discretion of the trial court since the necessity for the subpoena most
often turns upon a determination of factual issues. Without a determination of
arbitrariness or that the trial court finding was without record support, an
appellate court will not ordinarily disturb a finding that the applicant for a
subpoena complied with Rule 17 (c). See, e. g., Sue v. Chicago Transit Authority,
279 F.2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146 F.2d 402 (CA10 1944).
In a case such as this, however, where a subpoena is directed to a President of the
United States, appellate review, in deference to a coordinate branch of
49
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Government, should be particularly meticulous to ensure that the standards of
Rule 17 (c) have been correctly applied. United States v. Burr, 25 F. Cas. 30, 34
(No. 14,692d) (CC Va. 1807). From our examination of the materials submitted
by the Special Prosecutor to the District Court in support of his motion for the
subpoena, we are persuaded that the District Court's denial of the President's
motion to quash the subpoena was consistent with Rule 17 (c). We also conclude
that the Special Prosecutor has made a sufficient showing to justify a subpoena
for production before trial. The subpoenaed materials are not available from any
other source, and their examination and processing should not await trial in the
circumstances shown. Bowman Dairy Co. v. United States, 341 U.S. 214 (1951);
United States v. Iozia, 13 F. R. D. 335 (SDNY 1952). [418 U.S. 683, 703]
IV
THE CLAIM OF PRIVILEGE
A
Having determined that the requirements of Rule 17 (c) were satisfied, we turn to
the claim that the subpoena should be quashed because it demands "confidential
conversations between a President and his close advisors that it would be
inconsistent with the public interest to produce." App. 48a. The first contention is
a broad claim that the separation of powers doctrine precludes judicial review of a
President's claim of privilege. The second contention is that if he does not prevail
on the claim of absolute privilege, the court should hold as a matter of
constitutional law that the privilege prevails over the subpoena duces tecum.
In the performance of assigned constitutional duties each branch of the
Government must initially interpret the Constitution, and the interpretation of its
powers by any branch is due great respect from the others. The President's
counsel, as we have noted, reads the Constitution as providing an absolute
privilege of confidentiality for all Presidential communications. Many decisions
of this Court, however, have unequivocally reaffirmed the holding of Marbury v.
Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of
the judicial department to say what the law is." Id., at 177.
No holding of the Court has defined the scope of judicial power specifically
relating to the enforcement of a subpoena for confidential Presidential
communications for use in a criminal prosecution, but other exercises of power
by the Executive Branch and the Legislative Branch have been found invalid as
in conflict with the Constitution. Powell v. McCormack, 395 U.S. 486 (1969);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In a [418 U.S.
683, 704] series of cases, the Court interpreted the explicit immunity conferred
by express provisions of the Constitution on Members of the House and Senate
by the Speech or Debate Clause, U.S. Const. Art. I, 6. Doe v. McMillan, 412 U.S.
306 (1973); Gravel v. United States, 408 U.S. 606 (1972); United States v.
Brewster, 408 U.S. 501 (1972); United States v. Johnson, 383 U.S. 169 (1966).
Since this Court has consistently exercised the power to construe and delineate
claims arising under express powers, it must follow that the Court has authority to
50
Separation of Powers
interpret claims with respect to powers alleged to derive from enumerated
powers.
Our system of government "requires that federal courts on occasion interpret the
Constitution in a manner at variance with the construction given the document by
another branch." Powell v. McCormack, supra, at 549. And in Baker v. Carr, 369
U.S., at 211 , the Court stated:
"Deciding whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a delicate
exercise in constitutional interpretation, and is a responsibility of this Court as
ultimate interpreter of the Constitution."
Notwithstanding the deference each branch must accord the others, the "judicial
Power of the United States" vested in the federal courts by Art. III, 1, of the
Constitution can no more be shared with the Executive Branch than the Chief
Executive, for example, can share with the Judiciary the veto power, or the
Congress share with the Judiciary the power to override a Presidential veto. Any
other conclusion would be contrary to the basic concept of separation of powers
and the checks and balances that flow from the scheme of a tripartite government.
The Federalist, No. 47, p. 313 (S. Mittell ed. [418 U.S. 683, 705] 1938). We
therefore reaffirm that it is the province and duty of this Court "to say what the
law is" with respect to the claim of privilege presented in this case. Marbury v.
Madison, supra, at 177.
B
In support of his claim of absolute privilege, the President's counsel urges two
grounds, one of which is common to all governments and one of which is
peculiar to our system of separation of powers. The first ground is the valid need
for protection of communications between high Government officials and those
who advise and assist them in the performance of their manifold duties; the
importance of this confidentiality is too plain to require further discussion.
Human experience teaches that those who expect public dissemination of their
remarks may well temper candor with a concern for appearances and for their
own interests to the detriment of the decisionmaking process. 15 Whatever the
nature of the privilege of confidentiality of Presidential communications in the
exercise of Art. II powers, the privilege can be said to derive from the supremacy
of each branch within its own assigned area of constitutional duties. Certain
powers and privileges flow from the nature of enumerated powers; 16 the
protection of the confidentiality of [418 U.S. 683, 706]
Presidential
communications has similar constitutional underpinnings.
The second ground asserted by the President's counsel in support of the claim of
absolute privilege rests on the doctrine of separation of powers. Here it is argued
that the independence of the Executive Branch within its own sphere, Humphrey's
Executor v. United States, 295 U.S. 602, 629 -630 (1935); Kilbourn v.
Thompson, 103 U.S. 168, 190 -191 (1881), insulates a President from a judicial
51
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subpoena in an ongoing criminal prosecution, and thereby protects confidential
Presidential communications.
However, neither the doctrine of separation of powers, nor the need for
confidentiality of high-level communications, without more, can sustain an
absolute, unqualified Presidential privilege of immunity from judicial process
under all circumstances. The President's need for complete candor and objectivity
from advisers calls for great deference from the courts. However, when the
privilege depends solely on the broad, undifferentiated claim of public interest in
the confidentiality of such conversations, a confrontation with other values arises.
Absent a claim of need to protect military, diplomatic, or sensitive national
security secrets, we find it difficult to accept the argument that even the very
important interest in confidentiality of Presidential communications is
significantly diminished by production of such material for in camera inspection
with all the protection that a district court will be obliged to provide. [418 U.S.
683, 707]
The impediment that an absolute, unqualified privilege would place in the way of
the primary constitutional duty of the Judicial Branch to do justice in criminal
prosecutions would plainly conflict with the function of the courts under Art. III.
In designing the structure of our Government and dividing and allocating the
sovereign power among three co-equal branches, the Framers of the Constitution
sought to provide a comprehensive system, but the separate powers were not
intended to operate with absolute independence.
"While the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence,
autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.,
at 635 (Jackson, J., concurring).
To read the Art. II powers of the President as providing an absolute privilege as
against a subpoena essential to enforcement of criminal statutes on no more than
a generalized claim of the public interest in confidentiality of nonmilitary and
nondiplomatic discussions would upset the constitutional balance of "a workable
government" and gravely impair the role of the courts under Art. III.
C
Since we conclude that the legitimate needs of the judicial process may outweigh
Presidential privilege, it is necessary to resolve those competing interests in a
manner that preserves the essential functions of each branch. The right and indeed
the duty to resolve that question does not free the Judiciary from according high
respect to the representations made on behalf of the President. United States v.
Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694) (CC Va. 1807). [418 U.S. 683,
708]
The expectation of a President to the confidentiality of his conversations and
correspondence, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of all
52
Separation of Powers
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so
in a way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of Government
and inextricably rooted in the separation of powers under the Constitution. 17 In
Nixon v. Sirica, 159 U.S. App. D.C. 58, 487 F.2d 700 (1973), the Court of
Appeals held that such Presidential communications are "presumptively
privileged," id., at 75, 487 F.2d, at 717, and this position is accepted by both
parties in the present litigation. We agree with Mr. Chief Justice Marshall's
observation, therefore, that "[i]n no case of this kind would a court be required to
proceed against the president as against an ordinary individual." United States v.
Burr, 25 F. Cas., at 192.
But this presumptive privilege must be considered in light of our historic
commitment to the rule of law. This [418 U.S. 683, 709] is nowhere more
profoundly manifest than in our view that "the twofold aim [of criminal justice] is
that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S.,
at 88 . We have elected to employ an adversary system of criminal justice in
which the parties contest all issues before a court of law. The need to develop all
relevant facts in the adversary system is both fundamental and comprehensive.
The ends of criminal justice would be defeated if judgments were to be founded
on a partial or speculative presentation of the facts. The very integrity of the
judicial system and public confidence in the system depend on full disclosure of
all the facts, within the framework of the rules of evidence. To ensure that justice
is done, it is imperative to the function of courts that compulsory process be
available for the production of evidence needed either by the prosecution or by
the defense.
Only recently the Court restated the ancient proposition of law, albeit in the
context of a grand jury inquiry rather than a trial,
"that `the public . . . has a right to every man's evidence,' except for those persons
protected by a constitutional, common-law, or statutory privilege, United States
v. Bryan, 339 U.S. [323, 331 (1950)]; Blackmer v. United States, 284 U.S. 421,
438 (1932) . . . ." Branzburg v. Hayes, 408 U.S. 665, 688 (1972).
The privileges referred to by the Court are designed to protect weighty and
legitimate competing interests. Thus, the Fifth Amendment to the Constitution
provides that no man "shall be compelled in any criminal case to be a witness
against himself." And, generally, an attorney or a priest may not be required to
disclose what has been revealed in professional confidence. These and other
interests are recognized in law by privileges [418 U.S. 683, 710] against forced
disclosure, established in the Constitution, by statute, or at Common law.
Whatever their origins, these exceptions to the demand for every man's evidence
53
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are not lightly created nor expansively construed, for they are in derogation of the
search for truth. 18
In this case the President challenges a subpoena served on him as a third party
requiring the production of materials for use in a criminal prosecution; he does so
on the claim that he has a privilege against disclosure of confidential
communications. He does not place his claim of privilege on the ground they are
military or diplomatic secrets. As to these areas of Art. II duties the courts have
traditionally shown the utmost deference to Presidential responsibilities. In C. &
S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111 (1948), dealing with
Presidential authority involving foreign policy considerations, the Court said:
"The President, both as Commander-in-Chief and as the Nation's organ for
foreign affairs, has available intelligence services whose reports are not and ought
not to be published to the world. It would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions of the Executive
taken on information properly held secret."
In United States v. Reynolds, 345 U.S. 1 (1953), dealing [418 U.S. 683, 711]
with a claimant's demand for evidence in a Tort Claims Act case against the
Government, the Court said:
"It may be possible to satisfy the court, from all the circumstances of the case,
that there is a reasonable danger that compulsion of the evidence will expose
military matters which, in the interest of national security, should not be
divulged. When this is the case, the occasion for the privilege is appropriate, and
the court should not jeopardize the security which the privilege is meant to
protect by insisting upon an examination of the evidence, even by the judge
alone, in chambers." Id., at 10.
No case of the Court, however, has extended this high degree of deference to a
President's generalized interest in confidentiality. Nowhere in the Constitution, as
we have noted earlier, is there any explicit reference to a privilege of
confidentiality, yet to the extent this interest relates to the effective discharge of a
President's powers, it is constitutionally based.
The right to the production of all evidence at a criminal trial similarly has
constitutional dimensions. The Sixth Amendment explicitly confers upon every
defendant in a criminal trial the right "to be confronted with the witnesses against
him" and "to have compulsory process for obtaining witnesses in his favor."
Moreover, the Fifth Amendment also guarantees that no person shall be deprived
of liberty without due process of law. It is the manifest duty of the courts to
vindicate those guarantees, and to accomplish that it is essential that all relevant
and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of
confidentiality of Presidential communications in performance of the President's
responsibilities against the inroads of such a privilege on the fair [418 U.S. 683,
712]
administration of criminal justice. 19 The interest in preserving
confidentiality is weighty indeed and entitled to great respect. However, we
54
Separation of Powers
cannot conclude that advisers will be moved to temper the candor of their
remarks by the infrequent occasions of disclosure because of the possibility that
such conversations will be called for in the context of a criminal prosecution. 20
On the other hand, the allowance of the privilege to withhold evidence that is
demonstrably relevant in a criminal trial would cut deeply into the guarantee of
due process of law and gravely impair the basic function of the courts. A
President's acknowledged need for confidentiality [418 U.S. 683, 713] in the
communications of his office is general in nature, whereas the constitutional need
for production of relevant evidence in a criminal proceeding is specific and
central to the fair adjudication of a particular criminal case in the administration
of justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The President's broad interest in confidentiality of communications
will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal justice. The generalized
assertion of privilege must yield to the demonstrated, specific need for evidence
in a pending criminal trial.
D
We have earlier determined that the District Court did not err in authorizing the
issuance of the subpoena. If a President concludes that compliance with a
subpoena would be injurious to the public interest he may properly, as was done
here, invoke a claim of privilege on the return of the subpoena. Upon receiving a
claim of privilege from the Chief Executive, it became the further duty of the
District Court to treat the subpoenaed material as presumptively privileged and to
require the Special Prosecutor to demonstrate that the Presidential material was
"essential to the justice of the [pending criminal] case." United States v. Burr, 25
F. Cas., at 192. Here the District Court treated the material as presumptively
privileged, proceeded to find that the Special [418 U.S. 683, 714] Prosecutor
had made a sufficient showing to rebut the presumption, and ordered an in
camera examination of the subpoenaed material. On the basis of our examination
of the record we are unable to conclude that the District Court erred in ordering
the inspection. Accordingly we affirm the order of the District Court that
subpoenaed materials be transmitted to that court. We now turn to the important
question of the District Court's responsibilities in conducting the in camera
examination of Presidential materials or communications delivered under the
compulsion of the subpoena duces tecum.
E
Enforcement of the subpoena duces tecum was stayed pending this Court's
resolution of the issues raised by the petitions for certiorari. Those issues now
having been disposed of, the matter of implementation will rest with the District
55
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Court. "[T]he guard, furnished to [the President] to protect him from being
harassed by vexatious and unnecessary subpoenas, is to be looked for in the
conduct of a [district] court after those subpoenas have issued; not in any
circumstance which is to precede their being issued." United States v. Burr, 25 F.
Cas., at 34. Statements that meet the test of admissibility and relevance must be
isolated; all other material must be excised. At this stage the District Court is not
limited to representations of the Special Prosecutor as to the evidence sought by
the subpoena; the material will be available to the District Court. It is elementary
that in camera inspection of evidence is always a procedure calling for scrupulous
protection against any release or publication of material not found by the court, at
that stage, probably admissible in evidence and relevant to the issues of the trial
for which it is sought. That being true of an ordinary situation, it is obvious that
the District Court has [418 U.S. 683, 715] a very heavy responsibility to see to it
that Presidential conversations, which are either not relevant or not admissible,
are accorded that high degree of respect due the President of the United States.
Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was
extraordinarily careful to point out that
"[i]n no case of this kind would a court be required to proceed against the
president as against an ordinary individual." 25 F. Cas., at 192.
Marshall's statement cannot be read to mean in any sense that a President is above
the law, but relates to the singularly unique role under Art. II of a President's
communications and activities, related to the performance of duties under that
Article. Moreover, a President's communications and activities encompass a
vastly wider range of sensitive material than would be true of any "ordinary
individual." It is therefore necessary 21 in the public interest to afford
Presidential confidentiality the greatest protection consistent with the fair
administration of justice. The need for confidentiality even as to idle
conversations with associates in which casual reference might be made
concerning political leaders within the country or foreign statesmen is too
obvious to call for further treatment. We have no doubt that the District Judge
will at all times accord to Presidential records that high degree of deference
suggested in United States v. Burr, supra, and will discharge his responsibility to
see to [418 U.S. 683, 716] it that until released to the Special Prosecutor no in
camera material is revealed to anyone. This burden applies with even greater
force to excised material; once the decision is made to excise, the material is
restored to its privileged status and should be returned under seal to its lawful
custodian.
Since this matter came before the Court during the pendency of a criminal
prosecution, and on representations that time is of the essence, the mandate shall
issue forthwith.
Affirmed.
56
Lecture # 5: The Court’s Main Eras5
1. Federalism (1801-1835)
The First Chief Justice of the Supreme Court of the United States was
John Jay (1789-1795). After the resignation of the third Chief Justice
Oliver Ellsworth, Secretary of State John Marshall proposed Associate
Justice William Paterson as new Chief Justice; however President Adams
opted for Marshall, who would be soon the “father” of the US Supreme
Court.
Marshall, the oldest of 15 children, indeed never really had any legal
training, besides a year spent at William and Mary College, and for today
standards it is hard to understand how he could turn to be one of the
greatest justices in American history. In the same time, the Court had one
of the youngest and greatest scholars as Associate, namely Joseph Story,
appointed at the age of 32, and who later became professor at Harvard.
The most historical decision is without doubt Marbury v. Madison6
establishing the Court’s power to strike down federal statutes in breach of
the Constitution. Following the movement, Justice Story wrote the
opinion for the Marshall Court in Martin v. Hunter’s Lessee7, holding that
the Court had the authority to review state legislation and case law
violating the federal Constitution. Following the idea to reinforce
federalism, the Court ruled in McCulloch v. Maryland8 in favor of broad
implied powers of the Congress.
In 1835, Marshall became the first Chief Justice to die in office.
5
Taken from Farber & alii, Constitutional Law, St Paul, West Publishing, 1993.
5 US 137 (1803).
7
14 US 304 (1816).
8
17 US 316 (1819).
6
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Lectures on the US Legal System
2. Slavery (1836-1873)
Under its Chief Justice Roger Taney of Frederick, former Attorney
General, the Court turned in the mentioned period toward the protection
of states’ rights, although it did not dismantle the important precepts
established by the Marshall Court.
However, the most significant, and debated ruling happened in Dred Scott
v. Sandford9, the second decision to declare a federal law unconstitutional.
Qualified as the ‘biggest disaster in the history of the Court”10, it fueled
the flames that led to the Civil War as it “prohibited” to abolish slavery.
3. The Lochner Era (1873-1937)
After the war, the Supreme Court didn’t change its attitude toward the
Afro-American minority and diluted the amendments in order to allow
racial apartheid, through the “separate but equal” principle of Plessy v.
Ferguson11.
However, this period is also marked by the ruling in Lochner v. New
York12. By a bare 5-4 majority, the Court struck down a New York law
limiting the hours bakers could work to ten hours a day and sixty ours a
week. The Court held that the statute “interferes with the right of contract
between the employer and employees”, which is “part of the liberty of the
individual protected by the Fourteenth Amendment.” The Court
recognized, as it had in Plessy, that the state had the power to enact
statutes for the protection of the public welfare. But statutes “limiting the
hours in which grown and intelligent men (sic!) may labor to earn their
living, are mere meddlesome interferences with the rights of the
individual…”, ignoring thus the evidence that long and continous
exposure to heat, fumes, and dust did in fact impair the health of bakers.
Interestingly, all but one of the five justices in the Lochner majority had
voted to uphold the apartheid statute challenged in Plessy.
As its has been pointed out, “Lochner was emblematic of a whole era, in
which the Court transformed the Fourteenth Amendment from a radical
9
60 US 393 (1856); infra Lecture #6..
Farber, op.cit., p. 12.
11
163 US 537 (1896).
12
198 US 45 (1905).
10
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The Court’s Main Eras
rethinking of race and citizenship into a bulkwark through which the
propertied classes protected their vested interests against the demands of
the emergent labor movement…”13.
However, the period was also marked by the famous dissenting opinions
of Justice Holmes (1902-1932).Wounded three times during the Civil
War, he taught at Harvard before joining the Massachusetts Supreme
Judicial Court. Friend of the philospher William James, his life spanned
much of American history. As a small boy he was introduced to President
Adams; as an old man, he met the young John F. Kennedy. He left his
estate to the United States Government, which ultimately uses the money
to finance a multi-volume history of the Supreme Court.
As Justice, he defended the rights of labor unions, the action of the federal
government to experiment with novel forms of market regulation and
freedom of speech. Somehow, its voice was the one of the future.
4. The New Deal Court
The Great Depression ended the era of nostalgia and wealth, and President
Franklin Dwight Roosevelt won smashing electoral victories in 1932 and
1936 for his vision of a New Deal for the American people.
Till 1934, almost all New Deal legislation survived judicial review. The
first big shock came in 1935, when a 5-4 Court invalidated the Railroad
retirement Act in Railroad Retirement Board v. Alton Railroad Co14.
The dismantling of his further projects by the Court, led him to take his
case to the people, who in 1936 gave him the largest electoral vote
landslide of this century. Armed with this electoral mandate, FDR
launched a neverseen attack against the Supreme Court with its “Courtpacking plan”, consisting to add one Justice to the Court for each Justice
over 70 years old, “in order to ameliorate the “heavy burden” faced by the
Court”. Since there were six justices older than 70 in 1937, the plan would
allow the President to appoint “his” justices. Foreseeing what was going
on, the Court handed down two important pro-New Deal decisions,
although the Senate Judiciary Committee killed the Court-packing plan in
June 1937.
13
14
Farber, op.cit., p. 17.
295 US 330 (1935).
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Lectures on the US Legal System
Ironically, FDR got the chance to appoint 7 new justices between 1937
and 1941 because of retirements and deaths. \the new nominees were
young, talented and loyal to the President, transforming definitively
constitutional law, assuming a new role in protection individual civil
liberties.
5. The Warren Court and Beyond
A new era started with the appointment of Governor Earl Warren of
California as Chief Justice in 1953. The intellectual debate on the Warren
Court was largely shaped by the New deal appointee Black.
Hugo Black, former Klu Klux Klan member, turned to be the strongest
supporter of civil rights. Intelectual leader of the civil libertarian camp on
the Court, he championed the view that the bill of rights applies to the
states via the Fourteenth Amendment.
His closest ally on the Court was William Douglas, a rising star as law
profesor, first at Columbia then at Yale, followed by a term as president of
the Securities Exchange Commission (SEC). Besides the fact that he was
a poker-buddy of FDR, he has till today the record for length of service on
the Court with some 36 years.
The most important case of the Court in that period is doubtlessly Brown
v. Board of Education15 that put an end to segregation. It is also the
Warren Court who first used the First Amendment as an aggressive
instrument to protect the rights of peaceful demonstrations.
The Warren Court was followed by the Burger and the Rehnquist Court.
We do consider that today it is too soon to evaluate their work, as time
needs to pass by to make relevant their legacy. Today, the Court is
presided by John Roberts.
15
347 US 483, infra cases & material.
60
Part II – The Bill of Rights
One of the controversial points in the ratification debate was the
Constitution’s failure to guarantee specific individual “rights”. Federalists
argued that a specific bill of rights was unnecessary because the federal
government had only limited powers. And, furthermore, such a text could
be harmful because it would preclude whatever rights were left off the
specific list. However, the states of Virginia and New York called for
such a bill in their ratification resolution. Consecuently, the Federalists
accepted a ratification deal and pursuant to his bargain, Madison
introduced a series of constitutional amendments in the first Congress.
One of his main arguments against the Federalists’ objection was to say
that “it is true, the powers of the General Government are circumscribed,
they are directed to particular objects, but even if Government keeps
within those limits, it has certain discretionary powers with respect to the
means, which may admit of abuse to a certain extent, in the same manner
as the powers of the State governments under their constitutions”16.
Originally the first ten amendments did not apply to states governement. It
was not until the 1830’s that the Supreme Court first considered the
question of whether the Bill of Rights was also applicable to the states.
Following the theory of selective corporation17, the totality of the First,
Fourth and Sixth Amendments; the self-incrimination, double jeopardy
and just compensation clauses of the Fifth Amendment; and the guarantee
against cruel and unusual punishment of the Eightth Amendment do today
apply to states as well.
However, in order to really understand the issue of the American Bill of
rights, it is not possible to not talk first about American history in regards
to the famous – and sad – slavery question.
16
17
Farber, op.cit., 5.
Selective corporation is grounded in the Fourteenth Amendment which
prohbits states from denying an individual due process of law.
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62
Lecture # 6: The Slavery Question
One of the main evolutions of the Bill of rights was the slavery question.
In order to appease the Southern states, the Framers of the Constitution
had included three provisions contemplating slavery, giving thus, in an
indirect manner its recognition. However, in the Missouri Compromise of
1820, Congress prohibited slavery in the Northwest Territory in return for
allowing the rest of the country to follow a local option approach. The odd
consequences were illustrated in the case of Dred Scott. As a slave he
moved with his master from Missouri (a slave state under the 1820
compromise), where he and his owner resided, to Illinois where slavery
was forbidden. However, once arrived in Illinois, he brought his case
against his “master” before a court in order to obtain freedom. He invoked
federal jurisdiction by claiming diversity of citizenship (as more than one
state had been involved), and a claim for relief based on the local
Constitution and the 1820 federal statute probiting slavery.
Chief Justice Taney first ruled that federal courts had no jurisdiction,
because Scott was no ”citizen” of Missouri as the local constitution
contemplate slaves as a “subordinate and inferior class of beings, who had
been subjugated by the dominant race”. Next, Taney established that the
applicable law was the one of his residence, in this case the law of
Missouri. And finally, and most importantly, he declared the 1820 federal
statute unconstitutional: a federal law cannot give ipso jure freedom to a
slave, as the Fifth Amendment prohibits the federal government from
depriving citizens of their property [the slave] without just compensation
and due process of law.
The Court’s decision enraged the abolitionists, wrecked the incoming
Administration of James Buchanan, and set the premises that led to a civil
war.
The Civil War (1861-1865) put in exergue some of the main failures of
the Constitution: it did not deal with secession. Strict constitutionalists
like President Buchanan believed that the North was powerless to oppose
secession; newly elected President Lincoln defended a vision of a
inviolable national community.
The South’s defeat meant the formal end of slavery in the United States.
President Lincoln’s Emancipation Proclamation of January 1, 1863
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Lectures on the US Legal System
declared slavery abrogated in the South. In 1865, the Thirteenth
Amendment prohibiting slavery was adopted. In 1866, Congress passed
the first Civil Rights Act18 that guaranteed every citizen the right to make
and enforce contracts, to sue, purchase and convey land, and to enjoy the
equal benefit of all laws and proceedings for the security of persons and
property. Ratified in 1868, the Fourteenth Amendment definitively
changed constitutional law. The first sentence of the Amendment voided
what was left of the Dred Scott ruling, stating that persons born in the
United States are citizens of the country first, and then of the states in
which they reside second. The second sentence of the Amendment states:
No State shall make or enforce any law which shall abridge the privi-leges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, with-out due process of law; nor deny to any
person within its juris-diction the equal protection of the laws.
Finally, a fifteenth Amendment also had been ratified (1870), which
prohibits racial discrimination in access to voting.
18
The today 42 USC §§1981, 1982.
64
The Slavery Question
Cases and Materials
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954)
Foreword by the author
After the defeat of the South, the United States adopted the Reconstruction
Amendments aiming for the essential to insure the rights of the newly freed slaves
and to establish a strict equality between all the American citizens whatever their
colour. However, this effort met a discouraging reaction at the state level.
Although the eleven seceding slaveholding states rejoined the Union and adopted
equal protection guarantees in their constitutions, they also adopted in the same
time racially restrictive laws, including racial segregation in public schools. In a
first move, the Supreme Court looked like defending vehementously the new
adopted federal constitutional provisions. In Strauder v. West (100 US 303
(1879)), the Court overturned a West Virginia statute excluding any but “white
male persons” from juries. However, in the Civil Right Cases (109 US 3 (1883)),
the same Court invalidated the public accommodations section of the 1875 Civil
Rights Act which provided that hotels, railroads, theaters and so on could not
deny their services on account of race. Justice Joseph Bradley concluded for the
Court that the Fourteenth Amendment was aimed at discriminatory state laws, not
discriminatory private action; hence, section 5 of that amendment did not
authorize Congress to regulate private activity. As the Supreme Court waffled,
the South turned its back on Reconstruction. Nearly all of the states adopted “Jim
Crow” laws, which allowed African American and other racial minorities that
were “colored” access to public services or accommodations only on the
condition that they be segregated from the white majority. And the Supreme
Court upheld these statutes: separated-but-equal, as shown in Plessy v. Ferguson
(163 US 537 (1896)):
“The argument also assumes that social prejudices may be overcome by
legislation, and that equal rights cannot be secured to the Negro except by an
enforced commingling of the two races. We cannot accept this proposition. If the
two races are to meet upon terms of social equality, it must be the result of
natural affinities, a mutual appreciation of each other’s merits and a voluntary
consent of individuals”.
Dissenting alone, Justice John Marshall Harlan noted:
“Every one knows that the statute in question had its origin in the purpose,not so
much to exclude white persons from railroad cars occupied by blacks, as to
exclude colored people from coaches occupied by or assigned to white persons”.
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In 1909, two socialists from wealthy families, William English Walling (A
Southerner whose family had once owned slaves) and Mary White Ovington (a
descendant of abolitionists) organized a biracial committee for the rights of
blacks on the centennial of Lincoln’s birth. The conference outraged concerned
citizens and stimulated the formation of the National Association for the
Advancement of Colored People (NAACP).
In 1931 Margold’s report suggested the NAACP not to challenge the
constitutionality of segregation per se, for that seemed unlikely to succeed, but to
focus on the requirement in Plessy that facilities be “equal” if they be separate.
Like many other American cities in 1951, most important public and private
facilities in Topeka, Kansas, were segregated by race. The city’s elementary
schools were also segregated by state law. The black schools had what were
thought by the city to be comparable facilities to those in white schools, except
that they were located further away from the homes of black schoolchildren and
did not have exactly the same budget. The NAACP filed suit in federal courts on
28 February 1951, seeking invalidation of Topeka’s segregrated school system on
the ground that it was inconsistent with the equal protection clause of the
Fourteenth Amendment.
***
Argued December 9, 1952. Reargued December 8, 1953.
Decided May 17, 1954.
Segregation of white and Negro children in the public schools of a State solely on
the basis of race, pursuant to state laws permitting or requiring such segregation,
denies to Negro children the equal protection of the laws guaranteed by the
Fourteenth Amendment - even though the physical facilities and other "tangible"
factors of white and Negro schools may be equal. Pp. 486-496.
(a) The history of the Fourteenth Amendment is inconclusive as to its intended
effect on public education. Pp. 489-490.
(b) The question presented in these cases must be determined, not on the basis of
conditions existing when the Fourteenth Amendment was adopted, but in the light
of the full development of public education and its present place in American life
throughout the Nation. Pp. 492-493.
(c) Where a State has undertaken to provide an opportunity for an education in its
public schools, such an opportunity is a right which must be made available to all
on equal terms. P. 493.
(d) Segregation of children in public schools solely on the basis of race deprives
children of the minority group of equal educational opportunities, even though
the physical facilities and other "tangible" factors may be equal. Pp. 493-494.
66
The Slavery Question
(e) The "separate but equal" doctrine adopted in Plessy v. Ferguson, 163 U.S. 537
, has no place in the field of public education. P. 495. [347 U.S. 483, 484]
(f) The cases are restored to the docket for further argument on specified
questions relating to the forms of the decrees. Pp. 495-496.
Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United
States District Court for the Eastern District of South Carolina, argued December
9-10, 1952, reargued December 7-8, 1953; No. 4, Davis et al. v. County School
Board of Prince Edward County, Virginia, et al., on appeal from the United States
District Court for the Eastern District of Virginia, argued December 10, 1952,
reargued December 7-8, 1953; and No. 10, Gebhart et al. v. Belton et al., on
certiorari to the Supreme Court of Delaware, argued December 11, 1952,
reargued December 9, 1953.
Robert L. Carter argued the cause for appellants in No. 1 on the original argument
and on the reargument. Thurgood Marshall argued the cause for appellants in No.
2 on the original argument and Spottswood W. Robinson, III, for appellants in
No. 4 on the original argument, and both argued the causes for appellants in Nos.
2 and 4 on the reargument. Louis L. Redding and Jack Greenberg argued the
cause for respondents in No. 10 on the original argument and Jack Greenberg and
Thurgood Marshall on the reargument.
On the briefs were Robert L. Carter, Thurgood Marshall, Spottswood W.
Robinson, III, Louis L. Redding, Jack Greenberg, George E. C. Hayes, William
R. Ming, Jr., Constance Baker Motley, James M. Nabrit, Jr., Charles S. Scott,
Frank D. Reeves, Harold R. Boulware and Oliver W. Hill for appellants in Nos.
1, 2 and 4 and respondents in No. 10; George M. Johnson for appellants in Nos.
1, 2 and 4; and Loren Miller for appellants in Nos. 2 and 4. Arthur D. Shores and
A. T. Walden were on the Statement as to Jurisdiction and a brief opposing a
Motion to Dismiss or Affirm in No. 2.
Paul E. Wilson, Assistant Attorney General of Kansas, argued the cause for
appellees in No. 1 on the original argument and on the reargument. With him on
the briefs was Harold R. Fatzer, Attorney General.
John W. Davis argued the cause for appellees in No. 2 on the original argument
and for appellees in Nos. 2 and 4 on the reargument. With him on the briefs in
No. 2 were T. C. Callison, Attorney General of South Carolina, Robert McC.
Figg, Jr., S. E. Rogers, William R. Meagher and Taggart Whipple. [347 U.S. 483,
485]
J. Lindsay Almond, Jr., Attorney General of Virginia, and T. Justin Moore argued
the cause for appellees in No. 4 on the original argument and for appellees in
Nos. 2 and 4 on the reargument. On the briefs in No. 4 were J. Lindsay Almond,
Jr., Attorney General, and Henry T. Wickham, Special Assistant Attorney
General, for the State of Virginia, and T. Justin Moore, Archibald G. Robertson,
John W. Riely and T. Justin Moore, Jr. for the Prince Edward County School
Authorities, appellees.
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Lectures on the US Legal System
H. Albert Young, Attorney General of Delaware, argued the cause for petitioners
in No. 10 on the original argument and on the reargument. With him on the briefs
was Louis J. Finger, Special Deputy Attorney General.
By special leave of Court, Assistant Attorney General Rankin argued the cause
for the United States on the reargument, as amicus curiae, urging reversal in Nos.
1, 2 and 4 and affirmance in No. 10. With him on the brief were Attorney General
Brownell, Philip Elman, Leon Ulman, William J. Lamont and M. Magdelena
Schoch. James P. McGranery, then Attorney General, and Philip Elman filed a
brief for the United States on the original argument, as amicus curiae, urging
reversal in Nos. 1, 2 and 4 and affirmance in No. 10.
Briefs of amici curiae supporting appellants in No. 1 were filed by Shad Polier,
Will Maslow and Joseph B. Robison for the American Jewish Congress; by
Edwin J. Lukas, Arnold Forster, Arthur Garfield Hays, Frank E. Karelsen,
Leonard Haas, Saburo Kido and Theodore Leskes for the American Civil
Liberties Union et al.; and by John Ligtenberg and Selma M. Borchardt for the
American Federation of Teachers. Briefs of amici curiae supporting appellants in
No. 1 and respondents in No. 10 were filed by Arthur J. Goldberg and Thomas E.
Harris [347 U.S. 483, 486] for the Congress of Industrial Organizations and by
Phineas Indritz for the American Veterans Committee, Inc.
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. [347 U.S. 483, 487]
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, [347 U.S. 483, 488] they
had 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 . 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 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. Argument was heard in the 1952 Term, and reargument was
68
The Slavery Question
heard this Term on certain questions propounded by the Court. [347 U.S. 483,
489]
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 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.
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.
In the South, the movement toward free common schools, supported [347 U.S.
483, 490] 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 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 should be so little in
the history of the Fourteenth Amendment relating to its intended effect on public
education.
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. The doctrine of [347 U.S. 483, 491]
"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.
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. In Cumming v. County Board of Education, 175
U.S. 528 , and Gong Lum v. Rice, 275 U.S. 78 , the validity of the doctrine itself
was not challenged. In more recent cases, all on the graduate school [347 U.S.
483, 492] level, inequality was found in that specific benefits enjoyed by white
students were denied to Negro students of the same educational qualifications.
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Missouri ex rel. Gaines v. Canada, 305 U.S. 337 ; Sipuel v. Oklahoma, 332 U.S.
631 ; Sweatt v. Painter, 339 U.S. 629 ; McLaurin v. Oklahoma State Regents, 339
U.S. 637 . 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. 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.
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 [347 U.S. 483, 493] 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.
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.
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, 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, 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." [347 U.S. 483, 494]
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
70
The Slavery Question
race 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. 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:
"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."
Whatever may have been the extent of psychological knowledge at the time of
Plessy v. Ferguson, this finding is amply supported by modern authority. Any
language [347 U.S. 483, 495] in Plessy v. Ferguson contrary to this finding is
rejected.
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.
Because these are class actions, because of the wide applicability of this 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 previously propounded by the Court for
the reargument this Term. The Attorney General [347 U.S. 483, 496] 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.
It is so ordered.
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72
Lecture # 7: Procedural Rights
Procedural rights are guaranteed through the Fifth Amendment in regard
to the federal government, and through the Fourteenth amendment in
regard to state governments. Procedural due process guarantees that a fair
hearing, procedure or proceeding will be afforded to the individual before
federal or state government can deprive him of life, liberty or property. It
is not a substantative provision in the sense that it does not create a
substantative right, but rather a procedural safeguard against arbitrary
governmental action.
Fair proceeding means, at least, that the individual must have the
opportunity to object to the deprivation and that the dispute has to be
settled by a fair and neutral decision-maker. The government thus has a
certain amount of discretion, without being nonetheless absolute, in
deciding what type of “proceeding” it will give to the individual. For
example, if the individual has committed a crime punishable by life
imprisonment, his liberty is clearly at stake and the individual interest
involved is obviously great. In this instance, the required proceeding is a
full scale judicial trial. If the government merely wants to stop making
welfare payments to an individual, procedural due process does not
require the government to give the individual a full scale trial. In this
instance, an administrative hearing with an impartial decision-maker is
considered sufficient, as the individual interest is important but not
paramount.
In a more detailed way, the major procedural safeguards of individuals
contained in the Bill of rights can be found in the Fourth, Fifth, Sixth,
Seventh and Eight Amendments.
The Fourth Amendment is premised on the individual’s right to privacy
and prohibits the government from searching a person or place or seizing
an object unless there is a judicial warrant based in probable cause. The
doctrine known as the fruit of the poisonous tree doctrine states that not
only must all illegally obtained evidence be excluded from trial, but also
the tainted fruit i.e. all evidence derived from the exploitation of the
original illegally seized evidence. However, there are six exceptions:
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•
•
•
•
•
•
consent, rending admissible all evidence seized with the consent
of the concerned person;
search incident of a lawful arrest, allowing the officer to search
the person and the area immediately surrounding that person at
the moment of arrest as long as the arrest is lawful;
plain view, permitting the officer to seize evidence which is
plainly visible to him as long as he is legitimately on the
premises, that is, either with the consent of the owner or with a
valid warrant;
automobile exception, allowing to seize if there is a probable
cause to believe the evidence is in the automobile and that, if not
seized immediately, the evidence will be lost because the
automobile will be moved;
stop and frisk, allowing an officer to stop a person he reasonnable
suspects to carry a weapon in order to frisk him. However, the
exception only and exclusively concerns weapons;
hot pursuit, allows an officer to search any person fleeing from a
scene of crime, as searching any area through which this person
has fled too.
The Fifth Amendment guarantees, on a federal level, the right to be
indicted by Grand Jury for any infamous crime punishable by
imprisonment for over one year. Its double jeopardy clause also applies to
states, prohibiting a person to be tried twice for the same crime, without,
however, preventing a suspect to be tried in federal and state courts for
violation of federal and state law. Also aplicable to the Federation and
states, the self-incrimination privilege prohibits governments from forcing
a suspect to testify against himself.
The Sixth Amendment requires in federal and state courts public criminal
trials without unnecessary delay, and in case of serious offense, which
could entail imprisonment of over six months, the constitution of a jury.
The suspect is also entitled to be informed of the specific charges which
are brought against him in order to be able to prepare its defense. The
right to counsel is the last major right dictated by the Sith Amendment and
has been held by the Supreme Court to mean that a suspect has the right to
an attorney even if he cannot afford one, in which case a public counsel
will be paid for by the government. This fundemental right exists at all
critical stages of the adjudicatory process which includes many pre-trial
proceedings and some forms of appeals.
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Procedural Rights
The Seventh Amendment applies only to the federal government and
gives both the plaintiff and defendant in a civil suit the right to a trial by
jury whent the amount in controversy exceeds twenty dollars. The Eighth
Amendment’s right to reasonable bail and fines only applies to the federal
government too.
The last, and certainly one of the most controversial constitutional
provisions, is the Eighth Amendment’s prohibition against “cruel and
unusual punishment”, applicable to both federal and state governments.
The debate of course concerns the death penalty. The Supreme Court
ruled that the death penalty for murder is not in and of itself a cruel and
unusual punishment. However, the Court struck down many state statutes
that required automatic imposition of it, as it denies the judge or the jury
the discretion to review its application in regard to the Eighth
Amendment.
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Cases and Materials
MIRANDA v. ARIZONA, 384 U.S. 436 (1966)
No. 759.
Argued February 28 - March 1, 1966.
Decided June 13, 1966. *
[ Footnote * ] Together with No. 760, Vignera v. New York, on certiorari to the
Court of Appeals of New York and No. 761, Westover v. United States, on
certiorari to the United States Court of Appeals for the Ninth Circuit, both argued
February 28 - March 1, 1966; and No. 584, California v. Stewart, on certiorari to
the Supreme Court of California, argued February 28 - March 2, 1966.
In each of these cases the defendant while in police custody was questioned by
police officers, detectives, or a prosecuting attorney in a room in which he was
cut off from the outside world. None of the defendants was given a full and
effective warning of his rights at the outset of the interrogation process. In all
four cases the questioning elicited oral admissions, and in three of them signed
statements as well, which were admitted at their trials. All defendants were
convicted and all convictions, except in No. 584, were affirmed on appeal. Held:
1. The prosecution may not use statements, whether exculpatory or inculpatory,
stemming from questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way, unless it demonstrates the use of procedural safeguards effective
to secure the Fifth Amendment's privilege against self-incrimination. Pp. 444491.
(a) The atmosphere and environment of incommunicado interrogation as it exists
today is inherently intimidating and works to undermine the privilege against
self-incrimination. Unless adequate preventive measures are taken to dispel the
compulsion inherent in custodial surroundings, no statement obtained from the
defendant can truly be the product of his free choice. Pp. 445-458.
(b) The privilege against self-incrimination, which has had a long and expansive
historical development, is the essential mainstay of our adversary system and
guarantees to the individual the "right to remain silent unless he chooses to speak
in the unfettered exercise of his own will," during a period of custodial
interrogation [384 U.S. 436, 437] as well as in the courts or during the course of
other official investigations. Pp. 458-465.
(c) The decision in Escobedo v. Illinois, 378 U.S. 478 , stressed the need for
protective devices to make the process of police interrogation conform to the
dictates of the privilege. Pp. 465-466.
(d) In the absence of other effective measures the following procedures to
safeguard the Fifth Amendment privilege must be observed: The person in
custody must, prior to interrogation, be clearly informed that he has the right to
76
Procedural Rights
remain silent, and that anything he says will be used against him in court; he must
be clearly informed that he has the right to consult with a lawyer and to have the
lawyer with him during interrogation, and that, if he is indigent, a lawyer will be
appointed to represent him. Pp. 467-473.
(e) If the individual indicates, prior to or during questioning, that he wishes to
remain silent, the interrogation must cease; if he states that he wants an attorney,
the questioning must cease until an attorney is present. Pp. 473-474.
(f) Where an interrogation is conducted without the presence of an attorney and a
statement is taken, a heavy burden rests on the Government to demonstrate that
the defendant knowingly and intelligently waived his right to counsel. P. 475.
(g) Where the individual answers some questions during incustody interrogation
he has not waived his privilege and may invoke his right to remain silent
thereafter. Pp. 475-476.
(h) The warnings required and the waiver needed are, in the absence of a fully
effective equivalent, prerequisites to the admissibility of any statement,
inculpatory or exculpatory, made by a defendant. Pp. 476-477.
2. The limitations on the interrogation process required for the protection of the
individual's constitutional rights should not cause an undue interference with a
proper system of law enforcement, as demonstrated by the procedures of the FBI
and the safeguards afforded in other jurisdictions. Pp. 479-491.
3. In each of these cases the statements were obtained under circumstances that
did not meet constitutional standards for protection of the privilege against selfincrimination. Pp. 491-499.
98 Ariz. 18, 401 P.2d 721; 15 N. Y. 2d 970, 207 N. E. 2d 527; 16 N. Y. 2d 614,
209 N. E. 2d 110; 342 F.2d 684, reversed; 62 Cal. 2d 571, 400 P.2d 97, affirmed.
[384 U.S. 436, 438]
John J. Flynn argued the cause for petitioner in No. 759. With him on the brief
was John P. Frank. Victor M. Earle III argued the cause and filed a brief for
petitioner in No. 760. F. Conger Fawcett argued the cause and filed a brief for
petitioner in No. 761. Gordon Ringer, Deputy Attorney General of California,
argued the cause for petitioner in No. 584. With him on the briefs were Thomas
C. Lynch, Attorney General, and William E. James, Assistant Attorney General.
Gary K. Nelson, Assistant Attorney General of Arizona, argued the cause for
respondent in No. 759. With him on the brief was Darrell F. Smith, Attorney
General. William I. Siegel argued the cause for respondent in No. 760. With him
on the brief was Aaron E. Koota. Solicitor General Marshall argued the cause for
the United States in No. 761. With him on the brief were Assistant Attorney
General Vinson, Ralph S. Spritzer, Nathan Lewin, Beatrice Rosenberg and
Ronald L. Gainer. William A. Norris, by appointment of the Court, 382 U.S. 952
, argued the cause and filed a brief for respondent in No. 584.
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Telford Taylor, by special leave of Court, argued the cause for the State of New
York, as amicus curiae, in all cases. With him on the brief were Louis J.
Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant
Attorney General, and Barry Mahoney and George D. Zuckerman, Assistant
Attorneys General, joined by the Attorneys General for their respective States and
jurisdictions as follows: Richmond M. Flowers of Alabama, Darrell F. Smith of
Arizona, Bruce Bennett of Arkansas, Duke W. Dunbar of Colorado, David P.
Buckson of Delaware, Earl Faircloth of Florida, Arthur K. Bolton of Georgia,
Allan G. Shepard of Idaho, William G. Clark of Illinois, Robert C. Londerholm
of Kansas, Robert Matthews of Kentucky, Jack P. F. [384 U.S. 436, 439]
Gremillion of Louisiana, Richard J. Dubord of Maine, Thomas B. Finan of
Maryland, Norman H. Anderson of Missouri, Forrest H. Anderson of Montana,
Clarence A. H. Meyer of Nebraska, T. Wade Bruton of North Carolina, Helgi
Johanneson of North Dakota, Robert Y. Thornton of Oregon, Walter E.
Alessandroni of Pennsylvania, J. Joseph Nugent of Rhode Island, Daniel R.
McLeod of South Carolina, Waggoner Carr of Texas, Robert Y. Button of
Virginia, John J. O'Connell of Washington, C. Donald Robertson of West
Virginia, John F. Raper of Wyoming, Rafael Hernandez Colon of Puerto Rico
and Francisco Corneiro of the Virgin Islands.
Duane R. Nedrud, by special leave of Court, argued the cause for the National
District Attorneys Association, as amicus curiae, urging affirmance in Nos. 759
and 760, and reversal in No. 584. With him on the brief was Marguerite D.
Oberto.
Anthony G. Amsterdam, Paul J. Mishkin, Raymond L. Bradley, Peter Hearn and
Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus
curiae, in all cases.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The cases before us raise questions which go to the roots of our concepts of
American criminal jurisprudence: the restraints society must observe consistent
with the Federal Constitution in prosecuting individuals for crime. More
specifically, we deal with the admissibility of statements obtained from an
individual who is subjected to custodial police interrogation and the necessity for
procedures which assure that the individual is accorded his privilege under the
Fifth Amendment to the Constitution not to be compelled to incriminate himself.
[384 U.S. 436, 440]
We dealt with certain phases of this problem recently in Escobedo v. Illinois, 378
U.S. 478 (1964). There, as in the four cases before us, law enforcement officials
took the defendant into custody and interrogated him in a police station for the
purpose of obtaining a confession. The police did not effectively advise him of
his right to remain silent or of his right to consult with his attorney. Rather, they
confronted him with an alleged accomplice who accused him of having
perpetrated a murder. When the defendant denied the accusation and said "I didn't
shoot Manuel, you did it," they handcuffed him and took him to an interrogation
room. There, while handcuffed and standing, he was questioned for four hours
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Procedural Rights
until he confessed. During this interrogation, the police denied his request to
speak to his attorney, and they prevented his retained attorney, who had come to
the police station, from consulting with him. At his trial, the State, over his
objection, introduced the confession against him. We held that the statements
thus made were constitutionally inadmissible.
This case has been the subject of judicial interpretation and spirited legal debate
since it was decided two years ago. Both state and federal courts, in assessing its
implications, have arrived at varying conclusions. A wealth of scholarly material
has been written tracing its ramifications and underpinnings. Police and
prosecutor [384 U.S. 436, 441] have speculated on its range and desirability. We
granted certiorari in these cases, 382 U.S. 924, 925 , 937, in order further to
explore some facets of the problems, thus exposed, of applying the privilege
against self-incrimination to in-custody interrogation, and to give [384 U.S. 436,
442] concrete constitutional guidelines for law enforcement agencies and courts
to follow.
We start here, as we did in Escobedo, with the premise that our holding is not an
innovation in our jurisprudence, but is an application of principles long
recognized and applied in other settings. We have undertaken a thorough reexamination of the Escobedo decision and the principles it announced, and we
reaffirm it. That case was but an explication of basic rights that are enshrined in
our Constitution - that "No person . . . shall be compelled in any criminal case to
be a witness against himself," and that "the accused shall . . . have the Assistance
of Counsel" - rights which were put in jeopardy in that case through official
overbearing. These precious rights were fixed in our Constitution only after
centuries of persecution and struggle. And in the words of Chief Justice Marshall,
they were secured "for ages to come, and . . . designed to approach immortality as
nearly as human institutions can approach it," Cohens v. Virginia, 6 Wheat. 264,
387 (1821).
Over 70 years ago, our predecessors on this Court eloquently stated:
"The maxim nemo tenetur seipsum accusare had its origin in a protest against the
inquisitorial and manifestly unjust methods of interrogating accused persons,
which [have] long obtained in the continental system, and, until the expulsion of
the Stuarts from the British throne in 1688, and the erection of additional barriers
for the protection of the people against the exercise of arbitrary power, [were] not
uncommon even in England. While the admissions or confessions of the prisoner,
when voluntarily and freely made, have always ranked high in the scale of
incriminating evidence, if an accused person be asked to explain his apparent
connection with a crime under investigation, the ease with which the [384 U.S.
436, 443] questions put to him may assume an inquisitorial character, the
temptation to press the witness unduly, to browbeat him if he be timid or
reluctant, to push him into a corner, and to entrap him into fatal contradictions,
which is so painfully evident in many of the earlier state trials, notably in those of
Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so
odious as to give rise to a demand for its total abolition. The change in the
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English criminal procedure in that particular seems to be founded upon no statute
and no judicial opinion, but upon a general and silent acquiescence of the courts
in a popular demand. But, however adopted, it has become firmly embedded in
English, as well as in American jurisprudence. So deeply did the iniquities of the
ancient system impress themselves upon the minds of the American colonists that
the States, with one accord, made a denial of the right to question an accused
person a part of their fundamental law, so that a maxim, which in England was a
mere rule of evidence, became clothed in this country with the impregnability of
a constitutional enactment." Brown v. Walker, 161 U.S. 591, 596 -597 (1896).
In stating the obligation of the judiciary to apply these constitutional rights, this
Court declared in Weems v. United States, 217 U.S. 349, 373 (1910):
". . . our contemplation cannot be only of what has been but of what may be.
Under any other rule a constitution would indeed be as easy of application as it
would be deficient in efficacy and power. Its general principles would have little
value and be converted by precedent into impotent and lifeless formulas. Rights
declared in words might be lost in reality. And this has been recognized. The [384
U.S. 436, 444] meaning and vitality of the Constitution have developed against
narrow and restrictive construction."
This was the spirit in which we delineated, in meaningful language, the manner in
which the constitutional rights of the individual could be enforced against
overzealous police practices. It was necessary in Escobedo, as here, to insure that
what was proclaimed in the Constitution had not become but a "form of words,"
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920), in the hands
of government officials. And it is in this spirit, consistent with our role as judges,
that we adhere to the principles of Escobedo today.
Our holding will be spelled out with some specificity in the pages which follow
but briefly stated it is this: the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination. By custodial interrogation, we
mean questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way. As for the procedural safeguards to be employed, unless other
fully effective means are devised to inform accused persons of their right of
silence and to assure a continuous opportunity to exercise it, the following
measures are required. Prior to any questioning, the person must be warned that
he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed. The defendant may waive effectuation of these rights,
provided the waiver is made voluntarily, knowingly and intelligently. If,
however, he indicates in any manner and at any stage of the [384 U.S. 436, 445]
process that he wishes to consult with an attorney before speaking there can be no
questioning. Likewise, if the individual is alone and indicates in any manner that
he does not wish to be interrogated, the police may not question him. The mere
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fact that he may have answered some questions or volunteered some statements
on his own does not deprive him of the right to refrain from answering any
further inquiries until he has consulted with an attorney and thereafter consents to
be questioned.
I.
The constitutional issue we decide in each of these cases is the admissibility of
statements obtained from a defendant questioned while in custody or otherwise
deprived of his freedom of action in any significant way. In each, the defendant
was questioned by police officers, detectives, or a prosecuting attorney in a room
in which he was cut off from the outside world. In none of these cases was the
defendant given a full and effective warning of his rights at the outset of the
interrogation process. In all the cases, the questioning elicited oral admissions,
and in three of them, signed statements as well which were admitted at their
trials. They all thus share salient features - incommunicado interrogation of
individuals in a police-dominated atmosphere, resulting in self-incriminating
statements without full warnings of constitutional rights.
An understanding of the nature and setting of this in-custody interrogation is
essential to our decisions today. The difficulty in depicting what transpires at
such interrogations stems from the fact that in this country they have largely
taken place incommunicado. From extensive factual studies undertaken in the
early 1930's, including the famous Wickersham Report to Congress by a
Presidential Commission, it is clear that police violence and the "third degree"
flourished at that time. [384 U.S. 436, 446] In a series of cases decided by this
Court long after these studies, the police resorted to physical brutality - beating,
hanging, whipping - and to sustained and protracted questioning incommunicado
in order to extort confessions. The Commission on Civil Rights in 1961 found
much evidence to indicate that "some policemen still resort to physical force to
obtain confessions," 1961 Comm'n on Civil Rights Rep., Justice, pt. 5, 17. The
use of physical brutality and violence is not, unfortunately, relegated to the past
or to any part of the country. Only recently in Kings County, New York, the
police brutally beat, kicked and placed lighted cigarette butts on the back of a
potential witness under interrogation for the purpose of securing a statement
incriminating a third party. People v. Portelli, 15 N. Y. 2d 235, 205 N. E. 2d 857,
257 N. Y. S. 2d 931 (1965). [384 U.S. 436, 447]
The examples given above are undoubtedly the exception now, but they are
sufficiently widespread to be the object of concern. Unless a proper limitation
upon custodial interrogation is achieved - such as these decisions will advance there can be no assurance that practices of this nature will be eradicated in the
foreseeable future. The conclusion of the Wickersham Commission Report, made
over 30 years ago, is still pertinent:
"To the contention that the third degree is necessary to get the facts, the reporters
aptly reply in the language of the present Lord Chancellor of England (Lord
Sankey): `It is not admissible to do a great right by doing a little wrong. . . . It is
not sufficient to do justice by obtaining a proper result by irregular or improper
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means.' Not only does the use of the third degree involve a flagrant violation of
law by the officers of the law, but it involves also the dangers of false
confessions, and it tends to make police and prosecutors less zealous in the search
for objective evidence. As the New York prosecutor quoted in the report said, `It
is a short cut and makes the police lazy and unenterprising.' Or, as another official
quoted remarked: `If you use your fists, you [384 U.S. 436, 448] are not so
likely to use your wits.' We agree with the conclusion expressed in the report, that
`The third degree brutalizes the police, hardens the prisoner against society, and
lowers the esteem in which the administration of justice is held by the public.'" IV
National Commission on Law Observance and Enforcement, Report on
Lawlessness in Law Enforcement 5 (1931).
Again we stress that the modern practice of in-custody interrogation is
psychologically rather than physically oriented. As we have stated before, "Since
Chambers v. Florida, 309 U.S. 227 , this Court has recognized that coercion can
be mental as well as physical, and that the blood of the accused is not the only
hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S.
199, 206 (1960). Interrogation still takes place in privacy. Privacy results in
secrecy and this in turn results in a gap in our knowledge as to what in fact goes
on in the interrogation rooms. A valuable source of information about present
police practices, however, may be found in various police manuals and texts
which document procedures employed with success in the past, and which
recommend various other effective tactics. These [384 U.S. 436, 449] texts are
used by law enforcement agencies themselves as guides. It should be noted that
these texts professedly present the most enlightened and effective means
presently used to obtain statements through custodial interrogation. By
considering these texts and other data, it is possible to describe procedures
observed and noted around the country.
The officers are told by the manuals that the "principal psychological factor
contributing to a successful interrogation is privacy - being alone with the person
under interrogation." The efficacy of this tactic has been explained as follows:
"If at all practicable, the interrogation should take place in the investigator's
office or at least in a room of his own choice. The subject should be deprived of
every psychological advantage. In his own home he may be confident, indignant,
or recalcitrant. He is more keenly aware of his rights and [384 U.S. 436, 450]
more reluctant to tell of his indiscretions or criminal behavior within the walls of
his home. Moreover his family and other friends are nearby, their presence
lending moral support. In his own office, the investigator possesses all the
advantages. The atmosphere suggests the invincibility of the forces of the law."
To highlight the isolation and unfamiliar surroundings, the manuals instruct the
police to display an air of confidence in the suspect's guilt and from outward
appearance to maintain only an interest in confirming certain details. The guilt of
the subject is to be posited as a fact. The interrogator should direct his comments
toward the reasons why the subject committed the act, rather than court failure by
asking the subject whether he did it. Like other men, perhaps the subject has had
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Procedural Rights
a bad family life, had an unhappy childhood, had too much to drink, had an
unrequited desire for women. The officers are instructed to minimize the moral
seriousness of the offense, to cast blame on the victim or on society. These tactics
are designed to put the subject in a psychological state where his story is but an
elaboration of what the police purport to know already - that he is guilty.
Explanations to the contrary are dismissed and discouraged.
The texts thus stress that the major qualities an interrogator should possess are
patience and perseverance. [384 U.S. 436, 451] One writer describes the
efficacy of these characteristics in this manner:
"In the preceding paragraphs emphasis has been placed on kindness and
stratagems. The investigator will, however, encounter many situations where the
sheer weight of his personality will be the deciding factor. Where emotional
appeals and tricks are employed to no avail, he must rely on an oppressive
atmosphere of dogged persistence. He must interrogate steadily and without
relent, leaving the subject no prospect of surcease. He must dominate his subject
and overwhelm him with his inexorable will to obtain the truth. He should
interrogate for a spell of several hours pausing only for the subject's necessities in
acknowledgment of the need to avoid a charge of duress that can be technically
substantiated. In a serious case, the interrogation may continue for days, with the
required intervals for food and sleep, but with no respite from the atmosphere of
domination. It is possible in this way to induce the subject to talk without
resorting to duress or coercion. The method should be used only when the guilt of
the subject appears highly probable."
The manuals suggest that the suspect be offered legal excuses for his actions in
order to obtain an initial admission of guilt. Where there is a suspected revengekilling, for example, the interrogator may say:
"Joe, you probably didn't go out looking for this fellow with the purpose of
shooting him. My guess is, however, that you expected something from him and
that's why you carried a gun - for your own protection. You knew him for what
he was, no good. Then when you met him he probably started using foul, abusive
language and he gave some indication [384 U.S. 436, 452] that he was about to
pull a gun on you, and that's when you had to act to save your own life. That's
about it, isn't it, Joe?"
Having then obtained the admission of shooting, the interrogator is advised to
refer to circumstantial evidence which negates the self-defense explanation. This
should enable him to secure the entire story. One text notes that "Even if he fails
to do so, the inconsistency between the subject's original denial of the shooting
and his present admission of at least doing the shooting will serve to deprive him
of a self-defense `out' at the time of trial."
When the techniques described above prove unavailing, the texts recommend
they be alternated with a show of some hostility. One ploy often used has been
termed the "friendly-unfriendly" or the "Mutt and Jeff" act:
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". . . In this technique, two agents are employed. Mutt, the relentless investigator,
who knows the subject is guilty and is not going to waste any time. He's sent a
dozen men away for this crime and he's going to send the subject away for the
full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family
himself. He has a brother who was involved in a little scrape like this. He
disapproves of Mutt and his tactics and will arrange to get him off the case if the
subject will cooperate. He can't hold Mutt off for very long. The subject would be
wise to make a quick decision. The technique is applied by having both
investigators present while Mutt acts out his role. Jeff may stand by quietly and
demur at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt
is not present in the room." [384 U.S. 436, 453]
The interrogators sometimes are instructed to induce a confession out of trickery.
The technique here is quite effective in crimes which require identification or
which run in series. In the identification situation, the interrogator may take a
break in his questioning to place the subject among a group of men in a line-up.
"The witness or complainant (previously coached, if necessary) studies the lineup and confidently points out the subject as the guilty party." Then the
questioning resumes "as though there were now no doubt about the guilt of the
subject." A variation on this technique is called the "reverse line-up":
"The accused is placed in a line-up, but this time he is identified by several
fictitious witnesses or victims who associated him with different offenses. It is
expected that the subject will become desperate and confess to the offense under
investigation in order to escape from the false accusations."
The manuals also contain instructions for police on how to handle the individual
who refuses to discuss the matter entirely, or who asks for an attorney or
relatives. The examiner is to concede him the right to remain silent. "This usually
has a very undermining effect. First of all, he is disappointed in his expectation of
an unfavorable reaction on the part of the interrogator. Secondly, a concession of
this right to remain silent impresses [384 U.S. 436, 454] the subject with the
apparent fairness of his interrogator." After this psychological conditioning,
however, the officer is told to point out the incriminating significance of the
suspect's refusal to talk:
"Joe, you have a right to remain silent. That's your privilege and I'm the last
person in the world who'll try to take it away from you. If that's the way you want
to leave this, O. K. But let me ask you this. Suppose you were in my shoes and I
were in yours and you called me in to ask me about this and I told you, `I don't
want to answer any of your questions.' You'd think I had something to hide, and
you'd probably be right in thinking that. That's exactly what I'll have to think
about you, and so will everybody else. So let's sit here and talk this whole thing
over."
Few will persist in their initial refusal to talk, it is said, if this monologue is
employed correctly.
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In the event that the subject wishes to speak to a relative or an attorney, the
following advice is tendered:
"[T]he interrogator should respond by suggesting that the subject first tell the
truth to the interrogator himself rather than get anyone else involved in the
matter. If the request is for an attorney, the interrogator may suggest that the
subject save himself or his family the expense of any such professional service,
particularly if he is innocent of the offense under investigation. The interrogator
may also add, `Joe, I'm only looking for the truth, and if you're telling the truth,
that's it. You can handle this by yourself.'" [384 U.S. 436, 455]
From these representative samples of interrogation techniques, the setting
prescribed by the manuals and observed in practice becomes clear. In essence, it
is this: To be alone with the subject is essential to prevent distraction and to
deprive him of any outside support. The aura of confidence in his guilt
undermines his will to resist. He merely confirms the preconceived story the
police seek to have him describe. Patience and persistence, at times relentless
questioning, are employed. To obtain a confession, the interrogator must
"patiently maneuver himself or his quarry into a position from which the desired
objective may be attained." When normal procedures fail to produce the needed
result, the police may resort to deceptive stratagems such as giving false legal
advice. It is important to keep the subject off balance, for example, by trading on
his insecurity about himself or his surroundings. The police then persuade, trick,
or cajole him out of exercising his constitutional rights.
Even without employing brutality, the "third degree" or the specific stratagems
described above, the very fact of custodial interrogation exacts a heavy toll on
individual liberty and trades on the weakness of individuals. [384 U.S. 436, 456]
This fact may be illustrated simply by referring to three confession cases
decided by this Court in the Term immediately preceding our Escobedo decision.
In Townsend v. Sain, 372 U.S. 293 (1963), the defendant was a 19-year-old
heroin addict, described as a "near mental defective," id., at 307-310. The
defendant in Lynumn v. Illinois, 372 U.S. 528 (1963), was a woman who
confessed to the arresting officer after being importuned to "cooperate" in order
to prevent her children from being taken by relief authorities. This Court as in
those cases reversed the conviction of a defendant in Haynes v. Washington, 373
U.S. 503 (1963), whose persistent request during his interrogation was to phone
his wife or attorney. In other settings, these individuals might have exercised their
constitutional rights. In the incommunicado police-dominated atmosphere, they
succumbed.
In the cases before us today, given this background, we concern ourselves
primarily with this interrogation atmosphere and the evils it can bring. In No.
759, Miranda v. Arizona, the police arrested the defendant and took him to a
special interrogation room where they secured a confession. In No. 760, Vignera
v. New York, the defendant made oral admissions to the police after interrogation
in the afternoon, and then signed an inculpatory statement upon being questioned
by an assistant district attorney later the same evening. In No. 761, Westover v.
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United States, the defendant was handed over to the Federal Bureau of
Investigation by [384 U.S. 436, 457] local authorities after they had detained
and interrogated him for a lengthy period, both at night and the following
morning. After some two hours of questioning, the federal officers had obtained
signed statements from the defendant. Lastly, in No. 584, California v. Stewart,
the local police held the defendant five days in the station and interrogated him
on nine separate occasions before they secured his inculpatory statement.
In these cases, we might not find the defendants' statements to have been
involuntary in traditional terms. Our concern for adequate safeguards to protect
precious Fifth Amendment rights is, of course, not lessened in the slightest. In
each of the cases, the defendant was thrust into an unfamiliar atmosphere and run
through menacing police interrogation procedures. The potentiality for
compulsion is forcefully apparent, for example, in Miranda, where the indigent
Mexican defendant was a seriously disturbed individual with pronounced sexual
fantasies, and in Stewart, in which the defendant was an indigent Los Angeles
Negro who had dropped out of school in the sixth grade. To be sure, the records
do not evince overt physical coercion or patent psychological ploys. The fact
remains that in none of these cases did the officers undertake to afford
appropriate safeguards at the outset of the interrogation to insure that the
statements were truly the product of free choice.
It is obvious that such an interrogation environment is created for no purpose
other than to subjugate the individual to the will of his examiner. This atmosphere
carries its own badge of intimidation. To be sure, this is not physical intimidation,
but it is equally destructive of human dignity. The current practice of
incommunicado interrogation is at odds with one of our [384 U.S. 436, 458]
Nation's most cherished principles - that the individual may not be compelled to
incriminate himself. Unless adequate protective devices are employed to dispel
the compulsion inherent in custodial surroundings, no statement obtained from
the defendant can truly be the product of his free choice.
From the foregoing, we can readily perceive an intimate connection between the
privilege against self-incrimination and police custodial questioning. It is fitting
to turn to history and precedent underlying the Self-Incrimination Clause to
determine its applicability in this situation.
II.
We sometimes forget how long it has taken to establish the privilege against selfincrimination, the sources from which it came and the fervor with which it was
defended. Its roots go back into ancient times. Perhaps [384 U.S. 436, 459] the
critical historical event shedding light on its origins and evolution was the trial of
one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star
Chamber Oath in 1637. The oath would have bound him to answer to all
questions posed to him on any subject. The Trial of John Lilburn and John
Wharton, 3 How. St. Tr. 1315 (1637). He resisted the oath and declaimed the
proceedings, stating:
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"Another fundamental right I then contended for, was, that no man's conscience
ought to be racked by oaths imposed, to answer to questions concerning himself
in matters criminal, or pretended to be so." Haller & Davies, The Leveller Tracts
1647-1653, p. 454 (1944).
On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of
Star Chamber and went further in giving him generous reparation. The lofty
principles to which Lilburn had appealed during his trial gained popular
acceptance in England. These sentiments worked their way over to the Colonies
and were implanted after great struggle into the Bill of Rights. Those who framed
our Constitution and the Bill of Rights were ever aware of subtle encroachments
on individual liberty. They knew that "illegitimate and unconstitutional practices
get their first footing . . . by silent approaches and slight deviations from legal
modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886). The
privilege was elevated to constitutional status and has always been "as broad as
the mischief [384 U.S. 436, 460] against which it seeks to guard." Counselman
v. Hitchcock, 142 U.S. 547, 562 (1892). We cannot depart from this noble
heritage.
Thus we may view the historical development of the privilege as one which
groped for the proper scope of governmental power over the citizen. As a "noble
principle often transcends its origins," the privilege has come rightfully to be
recognized in part as an individual's substantive right, a "right to a private enclave
where he may lead a private life. That right is the hallmark of our democracy."
United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting),
rev'd, 353 U.S. 391 (1957). We have recently noted that the privilege against selfincrimination - the essential mainstay of our adversary system - is founded on a
complex of values, Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 -57, n. 5
(1964); Tehan v. Shott, 382 U.S. 406, 414 -415, n. 12 (1966). All these policies
point to one overriding thought: the constitutional foundation underlying the
privilege is the respect a government - state or federal - must accord to the dignity
and integrity of its citizens. To maintain a "fair state-individual balance," to
require the government "to shoulder the entire load," 8 Wigmore, Evidence 317
(McNaughton rev. 1961), to respect the inviolability of the human personality,
our accusatory system of criminal justice demands that the government seeking to
punish an individual produce the evidence against him by its own independent
labors, rather than by the cruel, simple expedient of compelling it from his own
mouth. Chambers v. Florida, 309 U.S. 227, 235 -238 (1940). In sum, the privilege
is fulfilled only when the person is guaranteed the right "to remain silent unless
he chooses to speak in the unfettered exercise of his own will." Malloy v. Hogan,
378 U.S. 1, 8 (1964).
The question in these cases is whether the privilege is fully applicable during a
period of custodial interrogation. [384 U.S. 436, 461] In this Court, the privilege
has consistently been accorded a liberal construction. Albertson v. SACB, 382
U.S. 70, 81 (1965); Hoffman v. United States, 341 U.S. 479, 486 (1951);
Arndstein v. McCarthy, 254 U.S. 71, 72 -73 (1920); Counselman v. Hitchock,
142 U.S. 547, 562 (1892). We are satisfied that all the principles embodied in the
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privilege apply to informal compulsion exerted by law-enforcement officers
during in-custody questioning. An individual swept from familiar surroundings
into police custody, surrounded by antagonistic forces, and subjected to the
techniques of persuasion described above cannot be otherwise than under
compulsion to speak. As a practical matter, the compulsion to speak in the
isolated setting of the police station may well be greater than in courts or other
official investigations, where there are often impartial observers to guard against
intimidation or trickery.
This question, in fact, could have been taken as settled in federal courts almost 70
years ago, when, in Bram v. United States, 168 U.S. 532, 542 (1897), this Court
held:
"In criminal trials, in the courts of the United States, wherever a question arises
whether a confession is incompetent because not voluntary, the issue is controlled
by that portion of the Fifth Amendment . . . commanding that no person `shall be
compelled in any criminal case to be a witness against himself.'"
In Bram, the Court reviewed the British and American history and case law and
set down the Fifth Amendment standard for compulsion which we implement
today:
"Much of the confusion which has resulted from the effort to deduce from the
adjudged cases what [384 U.S. 436, 462] would be a sufficient quantum of proof
to show that a confession was or was not voluntary, has arisen from a
misconception of the subject to which the proof must address itself. The rule is
not that in order to render a statement admissible the proof must be adequate to
establish that the particular communications contained in a statement were
voluntarily made, but it must be sufficient to establish that the making of the
statement was voluntary; that is to say, that from the causes, which the law treats
as legally sufficient to engender in the mind of the accused hope or fear in respect
to the crime charged, the accused was not involuntarily impelled to make a
statement, when but for the improper influences he would have remained silent. .
. ." 168 U.S., at 549 . And see, id., at 542.
The Court has adhered to this reasoning. In 1924, Mr. Justice Brandeis wrote for
a unanimous Court in reversing a conviction resting on a compelled confession,
Wan v. United States, 266 U.S. 1 . He stated:
"In the federal courts, the requisite of voluntariness is not satisfied by establishing
merely that the confession was not induced by a promise or a threat. A confession
is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession
may have been given voluntarily, although it was made to police officers, while
in custody, and in answer to an examination conducted by them. But a confession
obtained by compulsion must be excluded whatever may have been the character
of the compulsion, and whether the compulsion was applied in a judicial
proceeding or otherwise. Bram v. United States, 168 U.S. 532 ." 266 U.S., at 14 15.
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In addition to the expansive historical development of the privilege and the sound
policies which have nurtured [384 U.S. 436, 463] its evolution, judicial
precedent thus clearly establishes its application to incommunicado interrogation.
In fact, the Government concedes this point as well established in No. 761,
Westover v. United States, stating: "We have no doubt . . . that it is possible for a
suspect's Fifth Amendment right to be violated during in-custody questioning by
a law-enforcement officer."
Because of the adoption by Congress of Rule 5 (a) of the Federal Rules of
Criminal Procedure, and this Court's effectuation of that Rule in McNabb v.
United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449
(1957), we have had little occasion in the past quarter century to reach the
constitutional issues in dealing with federal interrogations. These supervisory
rules, requiring production of an arrested person before a commissioner "without
unnecessary delay" and excluding evidence obtained in default of that statutory
obligation, were nonetheless responsive to the same considerations of Fifth
Amendment policy that unavoidably face us now as to the States. In McNabb,
318 U.S., at 343 -344, and in Mallory, 354 U.S., at 455 -456, we recognized both
the dangers of interrogation and the appropriateness of prophylaxis stemming
from the very fact of interrogation itself.
Our decision in Malloy v. Hogan, 378 U.S. 1 (1964), necessitates an examination
of the scope of the privilege in state cases as well. In Malloy, we squarely held
the [384 U.S. 436, 464] privilege applicable to the States, and held that the
substantive standards underlying the privilege applied with full force to state
court proceedings. There, as in Murphy v. Waterfront Comm'n, 378 U.S. 52
(1964), and Griffin v. California, 380 U.S. 609 (1965), we applied the existing
Fifth Amendment standards to the case before us. Aside from the holding itself,
the reasoning in Malloy made clear what had already become apparent - that the
substantive and procedural safeguards surrounding admissibility of confessions in
state cases had become exceedingly exacting, reflecting all the policies embedded
in the privilege, 378 U.S., at 7 -8. The voluntariness doctrine in the state cases, as
Malloy indicates, encompasses all interrogation practices which are likely to exert
such pressure upon an individual as to disable him from [384 U.S. 436, 465]
making a free and rational choice. The implications of this proposition were
elaborated in our decision in Escobedo v. Illinois, 378 U.S. 478 , decided one
week after Malloy applied the privilege to the States.
Our holding there stressed the fact that the police had not advised the defendant
of his constitutional privilege to remain silent at the outset of the interrogation,
and we drew attention to that fact at several points in the decision, 378 U.S., at
483 , 485, 491. This was no isolated factor, but an essential ingredient in our
decision. The entire thrust of police interrogation there, as in all the cases today,
was to put the defendant in such an emotional state as to impair his capacity for
rational judgment. The abdication of the constitutional privilege - the choice on
his part to speak to the police - was not made knowingly or competently because
of the failure to apprise him of his rights; the compelling atmosphere of the in-
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custody interrogation, and not an independent decision on his part, caused the
defendant to speak.
A different phase of the Escobedo decision was significant in its attention to the
absence of counsel during the questioning. There, as in the cases today, we
sought a protective device to dispel the compelling atmosphere of the
interrogation. In Escobedo, however, the police did not relieve the defendant of
the anxieties which they had created in the interrogation rooms. Rather, they
denied his request for the assistance of counsel, 378 U.S., at 481 , 488, 491. This
heightened his dilemma, and [384 U.S. 436, 466] made his later statements the
product of this compulsion. Cf. Haynes v. Washington, 373 U.S. 503, 514 (1963).
The denial of the defendant's request for his attorney thus undermined his ability
to exercise the privilege - to remain silent if he chose or to speak without any
intimidation, blatant or subtle. The presence of counsel, in all the cases before us
today, would be the adequate protective device necessary to make the process of
police interrogation conform to the dictates of the privilege. His presence would
insure that statements made in the government-established atmosphere are not the
product of compulsion.
It was in this manner that Escobedo explicated another facet of the pre-trial
privilege, noted in many of the Court's prior decisions: the protection of rights at
trial. That counsel is present when statements are taken from an individual during
interrogation obviously enhances the integrity of the fact-finding processes in
court. The presence of an attorney, and the warnings delivered to the individual,
enable the defendant under otherwise compelling circumstances to tell his story
without fear, effectively, and in a way that eliminates the evils in the
interrogation process. Without the protections flowing from adequate warnings
and the rights of counsel, "all the careful safeguards erected around the giving of
testimony, whether by an accused or any other witness, would become empty
formalities in a procedure where the most compelling possible evidence of guilt,
a confession, would have already been obtained at the unsupervised pleasure of
the police." Mapp v. Ohio, 367 U.S. 643, 685 (1961) (HARLAN, J., dissenting).
Cf. Pointer v. Texas, 380 U.S. 400 (1965). [384 U.S. 436, 467]
III.
Today, then, there can be no doubt that the Fifth Amendment privilege is
available outside of criminal court proceedings and serves to protect persons in
all settings in which their freedom of action is curtailed in any significant way
from being compelled to incriminate themselves. We have concluded that without
proper safeguards the process of in-custody interrogation of persons suspected or
accused of crime contains inherently compelling pressures which work to
undermine the individual's will to resist and to compel him to speak where he
would not otherwise do so freely. In order to combat these pressures and to
permit a full opportunity to exercise the privilege against self-incrimination, the
accused must be adequately and effectively apprised of his rights and the exercise
of those rights must be fully honored.
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It is impossible for us to foresee the potential alternatives for protecting the
privilege which might be devised by Congress or the States in the exercise of
their creative rule-making capacities. Therefore we cannot say that the
Constitution necessarily requires adherence to any particular solution for the
inherent compulsions of the interrogation process as it is presently conducted.
Our decision in no way creates a constitutional straitjacket which will handicap
sound efforts at reform, nor is it intended to have this effect. We encourage
Congress and the States to continue their laudable search for increasingly
effective ways of protecting the rights of the individual while promoting efficient
enforcement of our criminal laws. However, unless we are shown other
procedures which are at least as effective in apprising accused persons of their
right of silence and in assuring a continuous opportunity to exercise it, the
following safeguards must be observed.
At the outset, if a person in custody is to be subjected to interrogation, he must
first be informed in clear and [384 U.S. 436, 468] unequivocal terms that he has
the right to remain silent. For those unaware of the privilege, the warning is
needed simply to make them aware of it - the threshold requirement for an
intelligent decision as to its exercise. More important, such a warning is an
absolute prerequisite in overcoming the inherent pressures of the interrogation
atmosphere. It is not just the subnormal or woefully ignorant who succumb to an
interrogator's imprecations, whether implied or expressly stated, that the
interrogation will continue until a confession is obtained or that silence in the
face of accusation is itself damning and will bode ill when presented to a jury.
Further, the warning will show the individual that his interrogators are prepared
to recognize his privilege should he choose to exercise it.
The Fifth Amendment privilege is so fundamental to our system of constitutional
rule and the expedient of giving an adequate warning as to the availability of the
privilege so simple, we will not pause to inquire in individual cases whether the
defendant was aware of his rights without a warning being given. Assessments of
the knowledge the defendant possessed, based on information [384 U.S. 436,
469] as to his age, education, intelligence, or prior contact with authorities, can
never be more than speculation; a warning is a clearcut fact. More important,
whatever the background of the person interrogated, a warning at the time of the
interrogation is indispensable to overcome its pressures and to insure that the
individual knows he is free to exercise the privilege at that point in time.
The warning of the right to remain silent must be accompanied by the explanation
that anything said can and will be used against the individual in court. This
warning is needed in order to make him aware not only of the privilege, but also
of the consequences of forgoing it. It is only through an awareness of these
consequences that there can be any assurance of real understanding and
intelligent exercise of the privilege. Moreover, this warning may serve to make
the individual more acutely aware that he is faced with a phase of the adversary
system - that he is not in the presence of persons acting solely in his interest.
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The circumstances surrounding in-custody interrogation can operate very quickly
to overbear the will of one merely made aware of his privilege by his
interrogators. Therefore, the right to have counsel present at the interrogation is
indispensable to the protection of the Fifth Amendment privilege under the
system we delineate today. Our aim is to assure that the individual's right to
choose between silence and speech remains unfettered throughout the
interrogation process. A once-stated warning, delivered by those who will
conduct the interrogation, cannot itself suffice to that end among those who most
require knowledge of their rights. A mere [384 U.S. 436, 470] warning given by
the interrogators is not alone sufficient to accomplish that end. Prosecutors
themselves claim that the admonishment of the right to remain silent without
more "will benefit only the recidivist and the professional." Brief for the National
District Attorneys Association as amicus curiae, p. 14. Even preliminary advice
given to the accused by his own attorney can be swiftly overcome by the secret
interrogation process. Cf. Escobedo v. Illinois, 378 U.S. 478, 485 , n. 5. Thus, the
need for counsel to protect the Fifth Amendment privilege comprehends not
merely a right to consult with counsel prior to questioning, but also to have
counsel present during any questioning if the defendant so desires.
The presence of counsel at the interrogation may serve several significant
subsidiary functions as well. If the accused decides to talk to his interrogators, the
assistance of counsel can mitigate the dangers of untrustworthiness. With a
lawyer present the likelihood that the police will practice coercion is reduced, and
if coercion is nevertheless exercised the lawyer can testify to it in court. The
presence of a lawyer can also help to guarantee that the accused gives a fully
accurate statement to the police and that the statement is rightly reported by the
prosecution at trial. See Crooker v. California, 357 U.S. 433, 443 -448 (1958)
(DOUGLAS, J., dissenting).
An individual need not make a pre-interrogation request for a lawyer. While such
request affirmatively secures his right to have one, his failure to ask for a lawyer
does not constitute a waiver. No effective waiver of the right to counsel during
interrogation can be recognized unless specifically made after the warnings we
here delineate have been given. The accused who does not know his rights and
therefore does not make a request [384 U.S. 436, 471] may be the person who
most needs counsel. As the California Supreme Court has aptly put it:
"Finally, we must recognize that the imposition of the requirement for the request
would discriminate against the defendant who does not know his rights. The
defendant who does not ask for counsel is the very defendant who most needs
counsel. We cannot penalize a defendant who, not understanding his
constitutional rights, does not make the formal request and by such failure
demonstrates his helplessness. To require the request would be to favor the
defendant whose sophistication or status had fortuitously prompted him to make
it." People v. Dorado, 62 Cal. 2d 338, 351, 398 P.2d 361, 369-370, 42 Cal. Rptr.
169, 177-178 (1965) (Tobriner, J.).
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In Carnley v. Cochran, 369 U.S. 506, 513 (1962), we stated: "[I]t is settled that
where the assistance of counsel is a constitutional requisite, the right to be
furnished counsel does not depend on a request." This proposition applies with
equal force in the context of providing counsel to protect an accused's Fifth
Amendment privilege in the face of interrogation. Although the role of counsel at
trial differs from the role during interrogation, the differences are not relevant to
the question whether a request is a prerequisite.
Accordingly we hold that an individual held for interrogation must be clearly
informed that he has the right to consult with a lawyer and to have the lawyer
with him during interrogation under the system for protecting the privilege we
delineate today. As with the warnings of the right to remain silent and that
anything stated can be used in evidence against him, this warning is an absolute
prerequisite to interrogation. No amount of [384 U.S. 436, 472] circumstantial
evidence that the person may have been aware of this right will suffice to stand in
its stead: Only through such a warning is there ascertainable assurance that the
accused was aware of this right.
If an individual indicates that he wishes the assistance of counsel before any
interrogation occurs, the authorities cannot rationally ignore or deny his request
on the basis that the individual does not have or cannot afford a retained attorney.
The financial ability of the individual has no relationship to the scope of the
rights involved here. The privilege against self-incrimination secured by the
Constitution applies to all individuals. The need for counsel in order to protect the
privilege exists for the indigent as well as the affluent. In fact, were we to limit
these constitutional rights to those who can retain an attorney, our decisions today
would be of little significance. The cases before us as well as the vast majority of
confession cases with which we have dealt in the past involve those unable to
retain counsel. While authorities are not required to relieve the accused of his
poverty, they have the obligation not to take advantage of indigence in the
administration of justice. Denial [384 U.S. 436, 473] of counsel to the indigent
at the time of interrogation while allowing an attorney to those who can afford
one would be no more supportable by reason or logic than the similar situation at
trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335 (1963),
and Douglas v. California, 372 U.S. 353 (1963).
In order fully to apprise a person interrogated of the extent of his rights under this
system then, it is necessary to warn him not only that he has the right to consult
with an attorney, but also that if he is indigent a lawyer will be appointed to
represent him. Without this additional warning, the admonition of the right to
consult with counsel would often be understood as meaning only that he can
consult with a lawyer if he has one or has the funds to obtain one. The warning of
a right to counsel would be hollow if not couched in terms that would convey to
the indigent - the person most often subjected to interrogation - the knowledge
that he too has a right to have counsel present. As with the warnings of the right
to remain silent and of the general right to counsel, only by effective and express
explanation to the indigent of this right can there be assurance that he was truly in
a position to exercise it.
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Once warnings have been given, the subsequent procedure is clear. If the
individual indicates in any manner, [384 U.S. 436, 474] at any time prior to or
during questioning, that he wishes to remain silent, the interrogation must cease.
At this point he has shown that he intends to exercise his Fifth Amendment
privilege; any statement taken after the person invokes his privilege cannot be
other than the product of compulsion, subtle or otherwise. Without the right to cut
off questioning, the setting of in-custody interrogation operates on the individual
to overcome free choice in producing a statement after the privilege has been
once invoked. If the individual states that he wants an attorney, the interrogation
must cease until an attorney is present. At that time, the individual must have an
opportunity to confer with the attorney and to have him present during any
subsequent questioning. If the individual cannot obtain an attorney and he
indicates that he wants one before speaking to police, they must respect his
decision to remain silent.
This does not mean, as some have suggested, that each police station must have a
"station house lawyer" present at all times to advise prisoners. It does mean,
however, that if police propose to interrogate a person they must make known to
him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will
be provided for him prior to any interrogation. If authorities conclude that they
will not provide counsel during a reasonable period of time in which investigation
in the field is carried out, they may refrain from doing so without violating the
person's Fifth Amendment privilege so long as they do not question him during
that time. [384 U.S. 436, 475]
If the interrogation continues without the presence of an attorney and a statement
is taken, a heavy burden rests on the government to demonstrate that the
defendant knowingly and intelligently waived his privilege against selfincrimination and his right to retained or appointed counsel. Escobedo v. Illinois,
378 U.S. 478, 490 , n. 14. This Court has always set high standards of proof for
the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 (1938), and
we re-assert these standards as applied to in-custody interrogation. Since the State
is responsible for establishing the isolated circumstances under which the
interrogation takes place and has the only means of making available
corroborated evidence of warnings given during incommunicado interrogation,
the burden is rightly on its shoulders.
An express statement that the individual is willing to make a statement and does
not want an attorney followed closely by a statement could constitute a waiver.
But a valid waiver will not be presumed simply from the silence of the accused
after warnings are given or simply from the fact that a confession was in fact
eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506,
516 (1962), is applicable here:
"Presuming waiver from a silent record is impermissible. The record must show,
or there must be an allegation and evidence which show, that an accused was
offered counsel but intelligently and understandingly rejected the offer. Anything
less is not waiver."
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See also Glasser v. United States, 315 U.S. 60 (1942). Moreover, where incustody interrogation is involved, there is no room for the contention that the
privilege is waived if the individual answers some questions or gives [384 U.S.
436, 476] some information on his own prior to invoking his right to remain
silent when interrogated.
Whatever the testimony of the authorities as to waiver of rights by an accused,
the fact of lengthy interrogation or incommunicado incarceration before a
statement is made is strong evidence that the accused did not validly waive his
rights. In these circumstances the fact that the individual eventually made a
statement is consistent with the conclusion that the compelling influence of the
interrogation finally forced him to do so. It is inconsistent with any notion of a
voluntary relinquishment of the privilege. Moreover, any evidence that the
accused was threatened, tricked, or cajoled into a waiver will, of course, show
that the defendant did not voluntarily waive his privilege. The requirement of
warnings and waiver of rights is a fundamental with respect to the Fifth
Amendment privilege and not simply a preliminary ritual to existing methods of
interrogation.
The warnings required and the waiver necessary in accordance with our opinion
today are, in the absence of a fully effective equivalent, prerequisites to the
admissibility of any statement made by a defendant. No distinction can be drawn
between statements which are direct confessions and statements which amount to
"admissions" of part or all of an offense. The privilege against self-incrimination
protects the individual from being compelled to incriminate himself in any
manner; it does not distinguish degrees of incrimination. Similarly, [384 U.S.
436, 477] for precisely the same reason, no distinction may be drawn between
inculpatory statements and statements alleged to be merely "exculpatory." If a
statement made were in fact truly exculpatory it would, of course, never be used
by the prosecution. In fact, statements merely intended to be exculpatory by the
defendant are often used to impeach his testimony at trial or to demonstrate
untruths in the statement given under interrogation and thus to prove guilt by
implication. These statements are incriminating in any meaningful sense of the
word and may not be used without the full warnings and effective waiver
required for any other statement. In Escobedo itself, the defendant fully intended
his accusation of another as the slayer to be exculpatory as to himself.
The principles announced today deal with the protection which must be given to
the privilege against self-incrimination when the individual is first subjected to
police interrogation while in custody at the station or otherwise deprived of his
freedom of action in any significant way. It is at this point that our adversary
system of criminal proceedings commences, distinguishing itself at the outset
from the inquisitorial system recognized in some countries. Under the system of
warnings we delineate today or under any other system which may be devised
and found effective, the safeguards to be erected about the privilege must come
into play at this point.
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Our decision is not intended to hamper the traditional function of police officers
in investigating crime. See Escobedo v. Illinois, 378 U.S. 478, 492 . When an
individual is in custody on probable cause, the police may, of course, seek out
evidence in the field to be used at trial against him. Such investigation may
include inquiry of persons not under restraint. General on-the-scene questioning
as to facts surrounding a crime or other general questioning of citizens in the factfinding process is not affected by our holding. It is an act of [384 U.S. 436, 478]
responsible citizenship for individuals to give whatever information they may
have to aid in law enforcement. In such situations the compelling atmosphere
inherent in the process of in-custody interrogation is not necessarily present.
In dealing with statements obtained through interrogation, we do not purport to
find all confessions inadmissible. Confessions remain a proper element in law
enforcement. Any statement given freely and voluntarily without any compelling
influences is, of course, admissible in evidence. The fundamental import of the
privilege while an individual is in custody is not whether he is allowed to talk to
the police without the benefit of warnings and counsel, but whether he can be
interrogated. There is no requirement that police stop a person who enters a
police station and states that he wishes to confess to a crime, or a person who
calls the police to offer a confession or any other statement he desires to make.
Volunteered statements of any kind are not barred by the Fifth Amendment and
their admissibility is not affected by our holding today.
To summarize, we hold that when an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any significant way and is subjected
to questioning, the privilege against self-incrimination is jeopardized. Procedural
safeguards must be employed to [384 U.S. 436, 479] protect the privilege, and
unless other fully effective means are adopted to notify the person of his right of
silence and to assure that the exercise of the right will be scrupulously honored,
the following measures are required. He must be warned prior to any questioning
that he has the right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise these rights must be afforded
to him throughout the interrogation. After such warnings have been given, and
such opportunity afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer questions or make a statement. But unless
and until such warnings and waiver are demonstrated by the prosecution at trial,
no evidence obtained as a result of interrogation can be used against him.
IV.
A recurrent argument made in these cases is that society's need for interrogation
outweighs the privilege. This argument is not unfamiliar to this Court. See, e. g.,
Chambers v. Florida, 309 U.S. 227, 240 -241 (1940). The whole thrust of our
foregoing discussion demonstrates that the Constitution has prescribed the rights
of the individual when confronted with the power of government when it
provided in the Fifth Amendment that an individual cannot be compelled to be a
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witness against himself. That right cannot be abridged. As Mr. Justice Brandeis
once observed:
"Decency, security and liberty alike demand that government officials shall be
subjected to the same [384 U.S. 436, 480] rules of conduct that are commands to
the citizen. In a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for ill, it teaches the whole people
by its example. Crime is contagious. If the Government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration of the criminal law the end
justifies the means . . . would bring terrible retribution. Against that pernicious
doctrine this Court should resolutely set its face." Olmstead v. United States, 277
U.S. 438, 485 (1928) (dissenting opinion).
In this connection, one of our country's distinguished jurists has pointed out: "The
quality of a nation's civilization can be largely measured by the methods it uses in
the enforcement of its criminal law."
If the individual desires to exercise his privilege, he has the right to do so. This is
not for the authorities to decide. An attorney may advise his client not to talk to
police until he has had an opportunity to investigate the case, or he may wish to
be present with his client during any police questioning. In doing so an attorney is
merely exercising the good professional judgment he has been taught. This is not
cause for considering the attorney a menace to law enforcement. He is merely
carrying out what he is sworn to do under his oath - to protect to the extent of his
ability the rights of his [384 U.S. 436, 481] client. In fulfilling this responsibility
the attorney plays a vital role in the administration of criminal justice under our
Constitution.
In announcing these principles, we are not unmindful of the burdens which law
enforcement officials must bear, often under trying circumstances. We also fully
recognize the obligation of all citizens to aid in enforcing the criminal laws. This
Court, while protecting individual rights, has always given ample latitude to law
enforcement agencies in the legitimate exercise of their duties. The limits we
have placed on the interrogation process should not constitute an undue
interference with a proper system of law enforcement. As we have noted, our
decision does not in any way preclude police from carrying out their traditional
investigatory functions. Although confessions may play an important role in
some convictions, the cases before us present graphic examples of the
overstatement of the "need" for confessions. In each case authorities conducted
interrogations ranging up to five days in duration despite the presence, through
standard investigating practices, of considerable evidence against each defendant.
Further examples are chronicled in our prior cases. See, e. g., Haynes v.
Washington, 373 U.S. 503, 518 -519 (1963); Rogers v. Richmond, 365 U.S. 534,
541 (1961); Malinski v. New York, 324 U.S. 401, 402 (1945). [384 U.S. 436,
482]
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It is also urged that an unfettered right to detention for interrogation should be
allowed because it will often redound to the benefit of the person questioned.
When police inquiry determines that there is no reason to believe that the person
has committed any crime, it is said, he will be released without need for further
formal procedures. The person who has committed no offense, however, will be
better able to clear himself after warnings with counsel present than without. It
can be assumed that in such circumstances a lawyer would advise his client to
talk freely to police in order to clear himself.
Custodial interrogation, by contrast, does not necessarily afford the innocent an
opportunity to clear themselves. A serious consequence of the present practice of
the interrogation alleged to be beneficial for the innocent is that many arrests "for
investigation" subject large numbers of innocent persons to detention and
interrogation. In one of the cases before us, No. 584, California v. Stewart, police
held four persons, who were in the defendant's house at the time of the arrest, in
jail for five days until defendant confessed. At that time they were finally
released. Police stated that there was "no evidence to connect them with any
crime." Available statistics on the extent of this practice where it is condoned
indicate that these four are far from alone in being subjected to arrest, prolonged
detention, and interrogation without the requisite probable cause. [384 U.S. 436,
483]
Over the years the Federal Bureau of Investigation has compiled an exemplary
record of effective law enforcement while advising any suspect or arrested
person, at the outset of an interview, that he is not required to make a statement,
that any statement may be used against him in court, that the individual may
obtain the services of an attorney of his own choice and, more recently, that he
has a right to free counsel if he is unable to pay. A letter received from the
Solicitor General in response to a question from the Bench makes it clear that the
present pattern of warnings and respect for the [384 U.S. 436, 484] rights of the
individual followed as a practice by the FBI is consistent with the procedure
which we delineate today. It states:
"At the oral argument of the above cause, Mr. Justice Fortas asked whether I
could provide certain information as to the practices followed by the Federal
Bureau of Investigation. I have directed these questions to the attention of the
Director of the Federal Bureau of Investigation and am submitting herewith a
statement of the questions and of the answers which we have received.
"`(1) When an individual is interviewed by agents of the Bureau, what warning is
given to him?
"`The standard warning long given by Special Agents of the FBI to both suspects
and persons under arrest is that the person has a right to say nothing and a right to
counsel, and that any statement he does make may be used against him in court.
Examples of this warning are to be found in the Westover case at 342 F.2d 684
(1965), and Jackson v. U.S., 337 F.2d 136 (1964), cert. den. 380 U.S. 935 .
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"`After passage of the Criminal Justice Act of 1964, which provides free counsel
for Federal defendants unable to pay, we added to our instructions to Special
Agents the requirement that any person who is under arrest for an offense under
FBI jurisdiction, or whose arrest is contemplated following the interview, must
also be advised of his right to free counsel if he is unable to pay, and the fact that
such counsel will be assigned by the Judge. At the same time, we broadened the
right to counsel warning [384 U.S. 436, 485] to read counsel of his own choice,
or anyone else with whom he might wish to speak.
"`(2) When is the warning given?
"`The FBI warning is given to a suspect at the very outset of the interview, as
shown in the Westover case, cited above. The warning may be given to a person
arrested as soon as practicable after the arrest, as shown in the Jackson case, also
cited above, and in U.S. v. Konigsberg, 336 F.2d 844 (1964), cert. den. 379 U.S.
933 , but in any event it must precede the interview with the person for a
confession or admission of his own guilt.
"`(3) What is the Bureau's practice in the event that (a) the individual requests
counsel and (b) counsel appears?
"`When the person who has been warned of his right to counsel decides that he
wishes to consult with counsel before making a statement, the interview is
terminated at that point, Shultz v. U.S., 351 F.2d 287 (1965). It may be continued,
however, as to all matters other than the person's own guilt or innocence. If he is
indecisive in his request for counsel, there may be some question on whether he
did or did not waive counsel. Situations of this kind must necessarily be left to the
judgment of the interviewing Agent. For example, in Hiram v. U.S., 354 F.2d 4
(1965), the Agent's conclusion that the person arrested had waived his right to
counsel was upheld by the courts.
"`A person being interviewed and desiring to consult counsel by telephone must
be permitted to do so, as shown in Caldwell v. U.S., 351 F.2d 459 (1965). When
counsel appears in person, he is permitted to confer with his client in private.
[384 U.S. 436, 486]
"`(4) What is the Bureau's practice if the individual requests counsel, but cannot
afford to retain an attorney?
"`If any person being interviewed after warning of counsel decides that he wishes
to consult with counsel before proceeding further the interview is terminated, as
shown above. FBI Agents do not pass judgment on the ability of the person to
pay for counsel. They do, however, advise those who have been arrested for an
offense under FBI jurisdiction, or whose arrest is contemplated following the
interview, of a right to free counsel if they are unable to pay, and the availability
of such counsel from the Judge.'"
The practice of the FBI can readily be emulated by state and local enforcement
agencies. The argument that the FBI deals with different crimes than are dealt
with by state authorities does not mitigate the significance of the FBI experience.
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The experience in some other countries also suggests that the danger to law
enforcement in curbs on interrogation is overplayed. The English procedure since
1912 under the Judges' Rules is significant. As recently [384 U.S. 436, 487]
strengthened, the Rules require that a cautionary warning be given an accused by
a police officer as soon as he has evidence that affords reasonable grounds for
suspicion; they also require that any statement made be given by the accused
without questioning by police. [384 U.S. 436, 488] The right of the individual to
consult with an attorney during this period is expressly recognized.
The safeguards present under Scottish law may be even greater than in England.
Scottish judicial decisions bar use in evidence of most confessions obtained
through police interrogation. In India, confessions made to police not in the
presence of a magistrate have been excluded [384 U.S. 436, 489] by rule of
evidence since 1872, at a time when it operated under British law. Identical
provisions appear in the Evidence Ordinance of Ceylon, enacted in 1895.
Similarly, in our country the Uniform Code of Military Justice has long provided
that no suspect may be interrogated without first being warned of his right not to
make a statement and that any statement he makes may be used against him.
Denial of the right to consult counsel during interrogation has also been
proscribed by military tribunals. There appears to have been no marked
detrimental effect on criminal law enforcement in these jurisdictions as a result of
these rules. Conditions of law enforcement in our country are sufficiently similar
to permit reference to this experience as assurance that lawlessness will not result
from warning an individual of his rights or allowing him to exercise them.
Moreover, it is consistent with our legal system that we give at least as much
protection to these rights as is given in the jurisdictions described. We deal in our
country with rights grounded in a specific requirement of the Fifth Amendment of
the Constitution, [384 U.S. 436, 490] whereas other jurisdictions arrived at their
conclusions on the basis of principles of justice not so specifically defined.
It is also urged upon us that we withhold decision on this issue until state
legislative bodies and advisory groups have had an opportunity to deal with these
problems by rule making. We have already pointed out that the Constitution does
not require any specific code of procedures for protecting the privilege against
self-incrimination during custodial interrogation. Congress and the States are free
to develop their own safeguards for the privilege, so long as they are fully as
effective as those described above in informing accused persons of their right of
silence and in affording a continuous opportunity to exercise it. In any event,
however, the issues presented are of constitutional dimensions and must be
determined by the courts. The admissibility of a statement in the face of a claim
that it was obtained in violation of the defendant's constitutional rights is an issue
the resolution of which has long since been undertaken by this Court. See Hopt v.
Utah, 110 U.S. 574 (1884). Judicial solutions to problems of constitutional
dimension have evolved decade by decade. As courts have been presented with
the need to enforce constitutional rights, they have found means of doing so. That
was our responsibility when Escobedo was before us and it is our [384 U.S. 436,
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491]
responsibility today. Where rights secured by the Constitution are
involved, there can be no rule making or legislation which would abrogate them.
V.
Because of the nature of the problem and because of its recurrent significance in
numerous cases, we have to this point discussed the relationship of the Fifth
Amendment privilege to police interrogation without specific concentration on
the facts of the cases before us. We turn now to these facts to consider the
application to these cases of the constitutional principles discussed above. In each
instance, we have concluded that statements were obtained from the defendant
under circumstances that did not meet constitutional standards for protection of
the privilege.
No. 759. Miranda v. Arizona.
On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home and
taken in custody to a Phoenix police station. He was there identified by the
complaining witness. The police then took him to "Interrogation Room No. 2" of
the detective bureau. There he was questioned by two police officers. The officers
admitted at trial that Miranda was not advised that he had a right to have an
attorney present. Two hours later, the [384 U.S. 436, 492] officers emerged
from the interrogation room with a written confession signed by Miranda. At the
top of the statement was a typed paragraph stating that the confession was made
voluntarily, without threats or promises of immunity and "with full knowledge of
my legal rights, understanding any statement I make may be used against me."
At his trial before a jury, the written confession was admitted into evidence over
the objection of defense counsel, and the officers testified to the prior oral
confession made by Miranda during the interrogation. Miranda was found guilty
of kidnapping and rape. He was sentenced to 20 to 30 years' imprisonment on
each count, the sentences to run concurrently. On appeal, the Supreme Court of
Arizona held that Miranda's constitutional rights were not violated in obtaining
the confession and affirmed the conviction. 98 Ariz. 18, 401 P.2d 721. In
reaching its decision, the court emphasized heavily the fact that Miranda did not
specifically request counsel.
We reverse. From the testimony of the officers and by the admission of
respondent, it is clear that Miranda was not in any way apprised of his right to
consult with an attorney and to have one present during the interrogation, nor was
his right not to be compelled to incriminate himself effectively protected in any
other manner. Without these warnings the statements were inadmissible. The
mere fact that he signed a statement which contained a typed-in clause stating that
he had "full knowledge" of his "legal rights" does not approach the knowing and
intelligent waiver required to relinquish constitutional rights. Cf. Haynes v.
Washington, 373 U.S. 503 , [384 U.S. 436, 493] 512-513 (1963); Haley v. Ohio,
332 U.S. 596, 601 (1948) (opinion of MR. JUSTICE DOUGLAS).
No. 760. Vignera v. New York.
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Petitioner, Michael Vignera, was picked up by New York police on October 14,
1960, in connection with the robbery three days earlier of a Brooklyn dress shop.
They took him to the 17th Detective Squad headquarters in Manhattan. Sometime
thereafter he was taken to the 66th Detective Squad. There a detective questioned
Vignera with respect to the robbery. Vignera orally admitted the robbery to the
detective. The detective was asked on cross-examination at trial by defense
counsel whether Vignera was warned of his right to counsel before being
interrogated. The prosecution objected to the question and the trial judge
sustained the objection. Thus, the defense was precluded from making any
showing that warnings had not been given. While at the 66th Detective Squad,
Vignera was identified by the store owner and a saleslady as the man who robbed
the dress shop. At about 3 p. m. he was formally arrested. The police then
transported him to still another station, the 70th Precinct in Brooklyn, "for
detention." At 11 p. m. Vignera was questioned by an assistant district attorney in
the presence of a hearing reporter who transcribed the questions and Vignera's
answers. This verbatim account of these proceedings contains no statement of any
warnings given by the assistant district attorney. At Vignera's trial on a charge of
first degree robbery, the detective testified as to the oral confession. The
transcription of the statement taken was also introduced in evidence. At the
conclusion of the testimony, the trial judge charged the jury in part as follows:
"The law doesn't say that the confession is void or invalidated because the police
officer didn't advise the defendant as to his rights. Did you hear what [384 U.S.
436, 494] I said? I am telling you what the law of the State of New York is."
Vignera was found guilty of first degree robbery. He was subsequently adjudged
a third-felony offender and sentenced to 30 to 60 years' imprisonment. The
conviction was affirmed without opinion by the Appellate Division, Second
Department, 21 App. Div. 2d 752, 252 N. Y. S. 2d 19, and by the Court of
Appeals, also without opinion, 15 N. Y. 2d 970, 207 N. E. 2d 527, 259 N. Y. S.
2d 857, remittitur amended, 16 N. Y. 2d 614, 209 N. E. 2d 110, 261 N. Y. S. 2d
65. In argument to the Court of Appeals, the State contended that Vignera had no
constitutional right to be advised of his right to counsel or his privilege against
self-incrimination.
We reverse. The foregoing indicates that Vignera was not warned of any of his
rights before the questioning by the detective and by the assistant district
attorney. No other steps were taken to protect these rights. Thus he was not
effectively apprised of his Fifth Amendment privilege or of his right to have
counsel present and his statements are inadmissible.
No. 761. Westover v. United States.
At approximately 9:45 p. m. on March 20, 1963, petitioner, Carl Calvin
Westover, was arrested by local police in Kansas City as a suspect in two Kansas
City robberies. A report was also received from the FBI that he was wanted on a
felony charge in California. The local authorities took him to a police station and
placed him in a line-up on the local charges, and at about 11:45 p. m. he was
booked. Kansas City police interrogated Westover [384 U.S. 436, 495] on the
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night of his arrest. He denied any knowledge of criminal activities. The next day
local officers interrogated him again throughout the morning. Shortly before noon
they informed the FBI that they were through interrogating Westover and that the
FBI could proceed to interrogate him. There is nothing in the record to indicate
that Westover was ever given any warning as to his rights by local police. At
noon, three special agents of the FBI continued the interrogation in a private
interview room of the Kansas City Police Department, this time with respect to
the robbery of a savings and loan association and a bank in Sacramento,
California. After two or two and one-half hours, Westover signed separate
confessions to each of these two robberies which had been prepared by one of the
agents during the interrogation. At trial one of the agents testified, and a
paragraph on each of the statements states, that the agents advised Westover that
he did not have to make a statement, that any statement he made could be used
against him, and that he had the right to see an attorney.
Westover was tried by a jury in federal court and convicted of the California
robberies. His statements were introduced at trial. He was sentenced to 15 years'
imprisonment on each count, the sentences to run consecutively. On appeal, the
conviction was affirmed by the Court of Appeals for the Ninth Circuit. 342 F.2d
684.
We reverse. On the facts of this case we cannot find that Westover knowingly and
intelligently waived his right to remain silent and his right to consult with counsel
prior to the time he made the statement. At the [384 U.S. 436, 496] time the FBI
agents began questioning Westover, he had been in custody for over 14 hours and
had been interrogated at length during that period. The FBI interrogation began
immediately upon the conclusion of the interrogation by Kansas City police and
was conducted in local police headquarters. Although the two law enforcement
authorities are legally distinct and the crimes for which they interrogated
Westover were different, the impact on him was that of a continuous period of
questioning. There is no evidence of any warning given prior to the FBI
interrogation nor is there any evidence of an articulated waiver of rights after the
FBI commenced its interrogation. The record simply shows that the defendant did
in fact confess a short time after being turned over to the FBI following
interrogation by local police. Despite the fact that the FBI agents gave warnings
at the outset of their interview, from Westover's point of view the warnings came
at the end of the interrogation process. In these circumstances an intelligent
waiver of constitutional rights cannot be assumed.
We do not suggest that law enforcement authorities are precluded from
questioning any individual who has been held for a period of time by other
authorities and interrogated by them without appropriate warnings. A different
case would be presented if an accused were taken into custody by the second
authority, removed both in time and place from his original surroundings, and
then adequately advised of his rights and given an opportunity to exercise them.
But here the FBI interrogation was conducted immediately following the state
interrogation in the same police station - in the same compelling surroundings.
Thus, in obtaining a confession from Westover [384 U.S. 436, 497] the federal
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authorities were the beneficiaries of the pressure applied by the local in-custody
interrogation. In these circumstances the giving of warnings alone was not
sufficient to protect the privilege.
No. 584. California v. Stewart.
In the course of investigating a series of purse-snatch robberies in which one of
the victims had died of injuries inflicted by her assailant, respondent, Roy Allen
Stewart, was pointed out to Los Angeles police as the endorser of dividend
checks taken in one of the robberies. At about 7:15 p. m., January 31, 1963,
police officers went to Stewart's house and arrested him. One of the officers
asked Stewart if they could search the house, to which he replied, "Go ahead."
The search turned up various items taken from the five robbery victims. At the
time of Stewart's arrest, police also arrested Stewart's wife and three other
persons who were visiting him. These four were jailed along with Stewart and
were interrogated. Stewart was taken to the University Station of the Los Angeles
Police Department where he was placed in a cell. During the next five days,
police interrogated Stewart on nine different occasions. Except during the first
interrogation session, when he was confronted with an accusing witness, Stewart
was isolated with his interrogators.
During the ninth interrogation session, Stewart admitted that he had robbed the
deceased and stated that he had not meant to hurt her. Police then brought Stewart
before a magistrate for the first time. Since there was no evidence to connect
them with any crime, the police then released the other four persons arrested with
him.
Nothing in the record specifically indicates whether Stewart was or was not
advised of his right to remain silent or his right to counsel. In a number of
instances, [384 U.S. 436, 498] however, the interrogating officers were asked to
recount everything that was said during the interrogations. None indicated that
Stewart was ever advised of his rights.
Stewart was charged with kidnapping to commit robbery, rape, and murder. At
his trial, transcripts of the first interrogation and the confession at the last
interrogation were introduced in evidence. The jury found Stewart guilty of
robbery and first degree murder and fixed the penalty as death. On appeal, the
Supreme Court of California reversed. 62 Cal. 2d 571, 400 P.2d 97, 43 Cal. Rptr.
201. It held that under this Court's decision in Escobedo, Stewart should have
been advised of his right to remain silent and of his right to counsel and that it
would not presume in the face of a silent record that the police advised Stewart of
his rights.
We affirm. In dealing with custodial interrogation, we will not presume that a
defendant has been effectively apprised of his rights and that his privilege against
self-incrimination has been adequately safeguarded on a record that does not
show that any warnings have been given or that any effective alternative has been
employed. Nor can a knowing and intelligent waiver of [384 U.S. 436, 499]
these rights be assumed on a silent record. Furthermore, Stewart's steadfast denial
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of the alleged offenses through eight of the nine interrogations over a period of
five days is subject to no other construction than that he was compelled by
persistent interrogation to forgo his Fifth Amendment privilege.
Therefore, in accordance with the foregoing, the judgments of the Supreme Court
of Arizona in No. 759, of the New York Court of Appeals in No. 760, and of the
Court of Appeals for the Ninth Circuit in No. 761 are reversed. The judgment of
the Supreme Court of California in No. 584 is affirmed.
It is so ordered.
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106
Lecture # 8: Substantial Rights
Section 1: First Amendment
The First Amendment guarantees 3 fundemental rights, which also apply
to states: freedom of religion, freedom of speech and freedom to assemble
and to petition.
Freedom of religion is based on two clauses, the free exercice clause and
the establishment clause. With respect to the first clause, an individual’s
right to hold any religious belief is completely protected under the First
Amendment. However, the right to engage in certain conduct or action
because of one’s religious belief is only relatively protected. In fact, the
Supreme Court, through a balancing test, weighs the individual’s interest
in engaging in such conduct or action against the state or federal
government’s interest in regulation such conduct or action. For example,
religious conduct such as polygamy or ceremonial use of drugs is not
protected by the free exercice clause since there is an important and
compelling public interest in the safety and morality of the community
that justifies the prohibition of these acts. The establishment clause not
only prohibits the establishment of a state church or state religion, but also
bars government sponsorship or financial support of religion as well as the
active involvement of government in religious activities.
Freedom of speech and its logical counterpart freedom of press are not
absolutely protected; however the government usually has the burdon of
justifying its restriction or prohibition. It has to be proven that the
imposed regulation furthers an important governmental interest unrelated
to the message being communicated and that is no greater than necessary
to protect the interest. The fundamental theory underlying freedom of
speech is that any restraint on ideas is intolerable, unless it has to be
considered in one of the following exceptions. Speeches presenting a
clear and present danger of imminent lawless action; fighting words or
the use of personally abusive words which are likely to incite immediate
physical retaliation; obscenity, being material which, when taken as a
whole by an average person applying contemporary community standards,
appeals to the prurient interest in sex, portrays sexual conduct in a
patently offensive way and lacks serious literary, artistic, political or
scientific value; defamation consisting in making a false statement
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regarding a person where such statement is made either with actuial
malice or negligently; and deceptive or false advertising.
Finally, people have the right to assemble peacefully and the right to
petition the government for grievances.
Section 2: Substantive Due Process
Substantive due process applies to the federal governement through the
Fifth Amendment, whereas the Fourteenth Amendment imposes it to state
governments. It provides the individual with the substantial right to
challenge any arbitrary governmental action taken through legislation. In
reality, substantive due process is a test of “reasonableness” of a statute.
Another substantial right is Equal protection, through the Fifth and
Fourteenth Amandments applicable to both federal and state governments,
prohibiting the governement from classifying arbitrarily people, where
such classification is unjustified and improper.
Substantive due process and Equal protection are thus closely linked,
although they are not to be confused. For instance, it is a substantive due
process question when a law limits the liberty of everyone to engage in a
specific activity; it is an equal protection question when the law limits the
liberty of some persons, but not others, to engage in the same activity.
The Supreme Court has developed two tests for substantive due process.
First, in order to challenge the government’s power to enact a legislation,
it may be proved that a fundemental right is involved, the latter being all
the rights of the First Amendment as well as those to interstate travel, to
privacy and the right to vote. A law that limits the exercise of one of these
rights must be “necessary to promote a compelling or overriding interest”
in order to be upheld. If the law does not involve a fundemental interest,
the second test permits to upheld it if it “rationnaly relates to a legitimate
governmental goal”. It is nearly impossible for a statute to fail this test.
Under the Equal protection doctrine, the Supreme Court has also
established two tests. The strict scrutiny test invalids a classification,
unless it promotes a compelling governmental interest. It is used when the
classification relates to those who may exercise a fundemental right or
when the classification is based on a suspect class, which includes race,
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national origin and alienage19. The second test, called minimal scrutiny,
states that a classification is valid if there is a reasonable basis for the
classification and relates to a legitimate governmental interest or purpose.
This test is almost impossible to fail and is primarly used to test nonsuspect categories like age or wealth.
Beneath the two “official” tests, the Supreme Court also applies a third
one for almost suspect classes like legitimacy, distinction between
legitimate and illegitimate children, or distinctions drawn on the basis of
sex20.
19
20
I.e. the legal status of an alien.
The Equal Rights Amendment could have provided a legal basis for this kind
of protection, but it has not been ratified by all the states.
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Cases and Materials
UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE,
438 U.S. 265 (1978)
No. 76-811.
Argued October 12, 1977
Decided June 28, 1978
The Medical School of the University of California at Davis (hereinafter Davis)
had two admissions programs for the entering class of 100 students - the regular
admissions program and the special admissions program. Under the regular
procedure, candidates whose overall under-graduate grade point averages fell
below 2.5 on a scale of 4.0 were summarily rejected. About one out of six
applicants was then given an interview, following which he was rated on a scale
of 1 to 100 by each of the committee members (five in 1973 and six in 1974), his
rating being based on the interviewers' summaries, his overall grade point
average, his science courses grade point average, his Medical College
Admissions Test (MCAT) scores, letters of recommendation, extracurricular
activities, and other biographical data, all of which resulted in a total "benchmark
score." The full admissions committee then made offers of admission on the basis
of their review of the applicant's file and his score, considering and acting upon
applications as they were received. The committee chairman was responsible for
placing names on the waiting list and had discretion to include persons with
"special skills." A separate committee, a majority of whom were members of
minority groups, operated the special admissions program. The 1973 and 1974
application forms, respectively, asked candidates whether they wished to be
considered as "economically and/or educationally disadvantaged" applicants and
members of a "minority group" (blacks, Chicanos, Asians, American Indians). If
an applicant of a minority group was found to be "disadvantaged," he would be
rated in a manner similar to the one employed by the general admissions
committee. Special candidates, however, did not have to meet the 2.5 grade point
cutoff and were not ranked against candidates in the general admissions process.
About one-fifth of the special applicants were invited for interviews in 1973 and
1974, following which they were given benchmark scores, and the top choices
were then given to the general admissions committee, which could reject special
candidates for failure to meet course requirements or other specific deficiencies.
The special committee continued to recommend candidates until 16 special
admission selections had been made. During a four-year period 63 minority [438
U.S. 265, 266] students were admitted to Davis under the special program and
44 under the general program. No disadvantaged whites were admitted under the
special program, though many applied. Respondent, a white male, applied to
110
Substantial Rights – Affirmative Actions
Davis in 1973 and 1974, in both years being considered only under the general
admissions program. Though he had a 468 out of 500 score in 1973, he was
rejected since no general applicants with scores less than 470 were being
accepted after respondent's application, which was filed late in the year, had been
processed and completed. At that time four special admission slots were still
unfilled. In 1974 respondent applied early, and though he had a total score of 549
out of 600, he was again rejected. In neither year was his name placed on the
discretionary waiting list. In both years special applicants were admitted with
significantly lower scores than respondent's. After his second rejection,
respondent filed this action in state court for mandatory, injunctive, and
declaratory relief to compel his admission to Davis, alleging that the special
admissions program operated to exclude him on the basis of his race in violation
of the Equal Protection Clause of the Fourteenth Amendment, a provision of the
California Constitution, and 601 of Title VI of the Civil Rights Act of 1964,
which provides, inter alia, that no person shall on the ground of race or color be
excluded from participating in any program receiving federal financial assistance.
Petitioner cross-claimed for a declaration that its special admissions program was
lawful. The trial court found that the special program operated as a racial quota,
because minority applicants in that program were rated only against one another,
and 16 places in the class of 100 were reserved for them. Declaring that petitioner
could not take race into account in making admissions decisions, the program
was held to violate the Federal and State Constitutions and Title VI. Respondent's
admission was not ordered, however, for lack of proof that he would have been
admitted but for the special program. The California Supreme Court, applying a
strict-scrutiny standard, concluded that the special admissions program was not
the least intrusive means of achieving the goals of the admittedly compelling state
interests of integrating the medical profession and increasing the number of
doctors willing to serve minority patients. Without passing on the state
constitutional or federal statutory grounds the court held that petitioner's special
admissions program violated the Equal Protection Clause. Since petitioner could
not satisfy its burden of demonstrating that respondent, absent the special
program, would not have been admitted, the court ordered his admission to
Davis.
Held: The judgment below is affirmed insofar as it orders respondent's admission
to Davis and invalidates petitioner's special admissions program, [438 U.S. 265,
267] but is reversed insofar as it prohibits petitioner from taking race into
account as a factor in its future admissions decisions.
18 Cal. 3d 34, 553 P.2d 1152, affirmed in part and reversed in part.
MR. JUSTICE POWELL, concluded:
1. Title VI proscribes only those racial classifications that would violate the
Equal Protection Clause if employed by a State or its agencies. Pp. 281-287.
2. Racial and ethnic classifications of any sort are inherently suspect and call for
the most exacting judicial scrutiny. While the goal of achieving a diverse student
body is sufficiently compelling to justify consideration of race in admissions
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decisions under some circumstances, petitioner's special admissions program,
which forecloses consideration to persons like respondent, is unnecessary to the
achievement of this compelling goal and therefore invalid under the Equal
Protection Clause. Pp. 287-320.
3. Since petitioner could not satisfy its burden of proving that respondent would
not have been admitted even if there had been no special admissions program, he
must be admitted. P. 320.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE,
MARSHALL, and MR. JUSTICE BLACKMUN concluded:
MR.
JUSTICE
1. Title VI proscribes only those racial classifications that would violate the
Equal Protection Clause if employed by a State or its agencies. Pp. 328-355.
2. Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose
of overcoming substantial, chronic minority underrepresentation in the medical
profession is sufficiently important to justify petitioner's remedial use of race.
Thus, the judgment below must be reversed in that it prohibits race from being
used as a factor in university admissions. Pp. 355-379.
MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE REHNQUIST, being of the view that whether
race can ever be a factor in an admissions policy is not an issue here; that Title VI
applies; and that respondent was excluded from Davis in violation of Title VI,
concurs in the Court's judgment insofar as it affirms the judgment of the court
below ordering respondent admitted to Davis. Pp. 408-421.
POWELL, J., announced the Court's judgment and filed an opinion expressing his
views of the case, in Parts I, III-A, and V-C of which WHITE, J., joined; and in
Parts I and V-C of which BRENNAN, MARSHALL, and BLACKMUN, JJ.,
joined. BRENNAN, WHITE, MARSHALL, and BLACKMUN, [438 U.S. 265,
268] JJ., filed an opinion concurring in the judgment in part and dissenting in
part, post, p. 324. WHITE, J., post, p. 379, MARSHALL, J., post, p. 387, and
BLACKMUN, J., post, p. 402, filed separate opinions. STEVENS, J., filed an
opinion concurring in the judgment in part and dissenting in part, in which
BURGER, C. J., and STEWART and REHNQUIST, JJ., joined, post, p. 408.
Archibald Cox argued the cause for petitioner. With him on the briefs were Paul
J. Mishkin, Jack B. Owens, and Donald L. Reidhaar.
Reynold H. Colvin argued the cause and filed briefs for respondent.
Solicitor General McCree argued the cause for the United States as amicus curiae.
With him on the briefs were Attorney General Bell, Assistant Attorney General
Days, Deputy Solicitor General Wallace, Brian K. Landsberg, Jessica Dunsay
Silver, Miriam R. Eisenstein, and Vincent F. O'Rourke
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Substantial Rights – Affirmative Actions
RICHMOND v. J. A. CROSON CO., 488 U.S. 469 (1989)
No. 87-998.
Argued October 5, 1988
Decided January 23, 1989
Appellant city adopted a Minority Business Utilization Plan (Plan) requiring
prime contractors awarded city construction contracts to subcontract at least 30%
of the dollar amount of each contract to one or more "Minority Business
Enterprises" (MBE's), which the Plan defined to include a business from
anywhere in the country at least 51% of which is owned and controlled by black,
Spanish-speaking, Oriental, Indian, Eskimo, or Aleut citizens. Although the Plan
declared that it was "remedial" in nature, it was adopted after a public hearing at
which no direct evidence was presented that the city had discriminated on the
basis of race in letting contracts or that its prime contractors had discriminated
against minority subcontractors. The evidence that was introduced included: a
statistical study indicating that, although the city's population was 50% black,
only 0.67% of its prime construction contracts had been awarded to minority
businesses in recent years; figures establishing that a variety of local contractors'
associations had virtually no MBE members; the city's counsel's conclusion that
the Plan was constitutional under Fullilove v. Klutznick, 448 U.S. 448 ; and the
statements of Plan proponents indicating that there had been widespread racial
discrimination in the local, state, and national construction industries. Pursuant to
the Plan, the city adopted rules requiring individualized consideration of each bid
or request for a waiver of the 30% set-aside, and providing that a waiver could be
granted only upon proof that sufficient qualified MBE's were unavailable or
unwilling to participate. After appellee construction company, the sole bidder on
a city contract, was denied a waiver and lost its contract, it brought suit under 42
U.S.C. 1983, alleging that the Plan was unconstitutional under the Fourteenth
Amendment's Equal Protection Clause. The Federal District Court upheld the
Plan in all respects, and the Court of Appeals affirmed, applying a test derived
from the principal opinion in Fullilove, supra, which accorded great deference to
Congress' findings of past societal discrimination in holding that a 10% minority
set-aside for certain federal construction grants did not violate the equal
protection component of the Fifth Amendment. However, on appellee's petition
for certiorari in this case, this Court vacated and remanded for further
consideration in light of its intervening decision in Wygant v. Jackson Board of
Education, 476 U.S. 267 , in [488 U.S. 469, 470] which the plurality applied a
strict scrutiny standard in holding that a race-based layoff program agreed to by a
school board and the local teachers' union violated the Fourteenth Amendment's
Equal Protection Clause. On remand, the Court of Appeals held that the city's
Plan violated both prongs of strict scrutiny, in that (1) the Plan was not justified
by a compelling governmental interest, since the record revealed no prior
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discrimination by the city itself in awarding contracts, and (2) the 30% set-aside
was not narrowly tailored to accomplish a remedial purpose.
Held:
The judgment is affirmed.
822 F.2d 1355, affirmed.
JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I,
III-B, and IV, concluding that:
1. The city has failed to demonstrate a compelling governmental interest
justifying the Plan, since the factual predicate supporting the Plan does not
establish the type of identified past discrimination in the city's construction
industry that would authorize race-based relief under the Fourteenth
Amendment's Equal Protection Clause. Pp. 498-506.
(a) A generalized assertion that there has been past discrimination in the entire
construction industry cannot justify the use of an unyielding racial quota, since it
provides no guidance for the city's legislative body to determine the precise scope
of the injury it seeks to remedy and would allow race-based decisionmaking
essentially limitless in scope and duration. The city's argument that it is
attempting to remedy various forms of past societal discrimination that are
alleged to be responsible for the small number of minority entrepreneurs in the
local contracting industry fails, since the city also lists a host of nonracial factors
which would seem to face a member of any racial group seeking to establish a
new business enterprise, such as deficiencies in working capital, inability to meet
bonding requirements, unfamiliarity with bidding procedures, and disability
caused by an inadequate track record. Pp. 498-499.
(b) None of the "facts" cited by the city or relied on by the District Court, singly
or together, provide a basis for a prima facie case of a constitutional or statutory
violation by anyone in the city's construction industry. The fact that the Plan
declares itself to be "remedial" is insufficient, since the mere recitation of a
"benign" or legitimate purpose for a racial classification is entitled to little or no
weight. Similarly, the views of Plan proponents as to past and present
discrimination in the industry are highly conclusory and of little probative value.
Reliance on the disparity between the number of prime contracts awarded to
minority businesses and the city's minority population is also misplaced, since the
proper statistical evaluation would compare the percentage of MBE's [488 U.S.
469, 471]
in the relevant market that are qualified to undertake city
subcontracting work with the percentage of total city construction dollars that are
presently awarded to minority subcontractors, neither of which is known to the
city. The fact that MBE membership in local contractors' associations was
extremely low is also not probative absent some link to the number of MBE's
eligible for membership, since there are numerous explanations for the dearth of
minority participation, including past societal discrimination in education and
economic opportunities as well as both black and white career and entrepreneurial
choices. Congress' finding in connection with the set-aside approved in Fullilove
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Substantial Rights – Affirmative Actions
that there had been nationwide discrimination in the construction industry also
has extremely limited probative value, since, by including a waiver procedure in
the national program, Congress explicitly recognized that the scope of the
problem would vary from market area to market area. In any event, Congress was
acting pursuant to its unique enforcement powers under 5 of the Fourteenth
Amendment. Pp. 499-504.
(c) The "evidence" relied upon by JUSTICE MARSHALL's dissent - the city's
history of school desegregation and numerous congressional reports - does little
to define the scope of any injury to minority contractors in the city or the
necessary remedy, and could justify a preference of any size or duration.
Moreover, JUSTICE MARSHALL's suggestion that discrimination findings may
be "shared" from jurisdiction to jurisdiction is unprecedented and contrary to this
Court's decisions. Pp. 504-506.
(d) Since there is absolutely no evidence of past discrimination against Spanishspeaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the city's
construction industry, the Plan's random inclusion of those groups strongly
impugns the city's claim of remedial motivation. P. 506.
2. The Plan is not narrowly tailored to remedy the effects of prior discrimination,
since it entitles a black, Hispanic, or Oriental entrepreneur from anywhere in the
country to an absolute preference over other citizens based solely on their race.
Although many of the barriers to minority participation in the construction
industry relied upon by the city to justify the Plan appear to be race neutral, there
is no evidence that the city considered using alternative, race-neutral means to
increase minority participation in city contracting. Moreover, the Plan's rigid 30%
quota rests upon the completely unrealistic assumption that minorities will choose
to enter construction in lockstep proportion to their representation in the local
population. Unlike the program upheld in Fullilove, the Plan's waiver system
focuses upon the availability of MBE's, and does not inquire whether the
particular MBE seeking a racial preference has suffered from the effects of past
discrimination by the city or prime contractors. Given the fact that the city must
already consider bids and [488 U.S. 469, 472] waivers on a case-by-case basis,
the city's only interest in maintaining a quota system rather than investigating the
need for remedial action in particular cases would seem to be simply
administrative convenience, which, standing alone, cannot justify the use of a
suspect classification under equal protection strict scrutiny. Pp. 507-508.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE WHITE,
concluded in Part II that if the city could identify past discrimination in the local
construction industry with the particularity required by the Equal Protection
Clause, it would have the power to adopt race-based legislation designed to
eradicate the effects of that discrimination. The principal opinion in Fullilove
cannot be read to relieve the city of the necessity of making the specific findings
of discrimination required by the Clause, since the congressional finding of past
discrimination relied on in that case was made pursuant to Congress' unique
power under 5 of the Amendment to enforce, and therefore to identify and redress
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violations of, the Amendment's provisions. Conversely, 1 of the Amendment,
which includes the Equal Protection Clause, is an explicit constraint upon the
power of States and political subdivisions, which must undertake any remedial
efforts in accordance with the dictates of that section. However, the Court of
Appeals erred to the extent that it followed by rote the Wygant plurality's ruling
that the Equal Protection Clause requires a showing of prior discrimination by the
governmental unit involved, since that ruling was made in the context of a racebased policy that affected the particular public employer's own work force,
whereas this case involves a state entity which has specific state-law authority to
address discriminatory practices within local commerce under its jurisdiction. Pp.
486-493.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE KENNEDY, concluded in Parts III-A and V that:
1. Since the Plan denies certain citizens the opportunity to compete for a fixed
percentage of public contracts based solely on their race, Wygant's strict scrutiny
standard of review must be applied, which requires a firm evidentiary basis for
concluding that the underrepresentation of minorities is a product of past
discrimination. Application of that standard, which is not dependent on the race
of those burdened or benefited by the racial classification, assures that the city is
pursuing a remedial goal important enough to warrant use of a highly suspect tool
and that the means chosen "fit" this compelling goal so closely that there is little
or no possibility that the motive for the classification was illegitimate racial
prejudice or stereotype. The relaxed standard of review proposed by JUSTICE
MARSHALL's dissent does not provide a means for determining that a racial
classification is in fact "designed to further remedial goals," since it accepts the
remedial nature of the classification [488 U.S. 469, 473] before examination of
the factual basis for the classification's enactment and the nexus between its scope
and that factual basis. Even if the level of equal protection scrutiny could be said
to vary according to the ability of different groups to defend their interests in the
representative process, heightened scrutiny would still be appropriate in the
circumstances of this case, since blacks constitute approximately 50% of the
city's population and hold five of nine seats on the City Council, thereby raising
the concern that the political majority may have acted to disadvantage a minority
based on unwarranted assumptions or incomplete facts. Pp. 493-498.
2. Even in the absence of evidence of discrimination in the local construction
industry, the city has at its disposal an array of race-neutral devices to increase
the accessibility of city contracting opportunities to small entrepreneurs of all
races who have suffered the effects of past societal discrimination, including
simplification of bidding procedures, relaxation of bonding requirements,
training, financial aid, elimination or modification of formal barriers caused by
bureaucratic inertia, and the prohibition of discrimination in the provision of
credit or bonding by local suppliers and banks. Pp. 509-511.
JUSTICE STEVENS, although agreeing that the Plan cannot be justified as a
remedy for past discrimination, concluded that the Fourteenth Amendment does
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Substantial Rights – Affirmative Actions
not limit permissible racial classifications to those that remedy past wrongs, but
requires that race-based governmental decisions be evaluated primarily by
studying their probable impact on the future. Pp. 511-518.
(a) Disregarding the past history of racial injustice, there is not even an arguable
basis for suggesting that the race of a subcontractor or contractor on city projects
should have any relevance to his or her access to the market. Although race is not
always irrelevant to sound governmental decisionmaking, the city makes no
claim that the public interest in the efficient performance of its construction
contracts will be served by granting a preference to minority-business enterprises.
Pp. 512-513.
(b) Legislative bodies such as the city council, which are primarily policymaking
entities that promulgate rules to govern future conduct, raise valid constitutional
concerns when they use the political process to punish or characterize past
conduct of private citizens. Courts, on the other hand, are well equipped to
identify past wrongdoers and to fashion remedies that will create the conditions
that presumably would have existed had no wrong been committed, and should
have the same broad discretion in racial discrimination cases that chancellors
enjoy in other areas of the law to fashion remedies against persons who have been
proved guilty of violations of law. Pp. 513-514. [488 U.S. 469, 474]
(c) Rather than engaging in debate over the proper standard of review to apply in
affirmative-action litigation, it is more constructive to try to identify the
characteristics of the advantaged and disadvantaged classes that may justify their
disparate treatment. Here, instead of carefully identifying those characteristics,
the city has merely engaged in the type of stereotypical analysis that is the
hallmark of Equal Protection Clause violations. The class of persons benefited by
the Plan is not limited to victims of past discrimination by white contractors in
the city, but encompasses persons who have never been in business in the city,
minority contractors who may have themselves been guilty of discrimination
against other minority group members, and firms that have prospered
notwithstanding discriminatory treatment. Similarly, although the Plan
unquestionably disadvantages some white contractors who are guilty of past
discrimination against blacks, it also punishes some who discriminated only
before it was forbidden by law and some who have never discriminated against
anyone. Pp. 514-517.
JUSTICE KENNEDY concluded that the Fourteenth Amendment ought not to be
interpreted to reduce a State's power to eradicate racial discrimination and its
effects in both the public and private sectors, or its absolute duty to do so where
those wrongs were caused intentionally by the State itself, except where there is a
conflict with federal law or where, as here, a state remedy itself violates equal
protection. Although a rule striking down all racial preferences which are not
necessary remedies to victims of unlawful discrimination would serve important
structural goals by eliminating the necessity for courts to pass on each such
preference that is enacted, that rule would be a significant break with this Court's
precedents that require a case-by-case test, and need not be adopted. Rather, it
117
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may be assumed that the principle of race neutrality found in the Equal Protection
Clause will be vindicated by the less absolute strict scrutiny standard, the
application of which demonstrates that the city's Plan is not a remedy but is itself
an unconstitutional preference. Pp. 518-520.
JUSTICE SCALIA, agreeing that strict scrutiny must be applied to all
governmental racial classifications, concluded that:
1. The Fourteenth Amendment prohibits state and local governments from
discriminating on the basis of race in order to undo the effects of past
discrimination, except in one circumstance: where that is necessary to eliminate
their own maintenance of a system of unlawful racial classification. Moreover,
the State's remedial power in that instance extends no further than the scope of
the constitutional violation, and does not encompass the continuing effects of a
discriminatory system once the system itself has been eliminated. Pp. 520-525.
[488 U.S. 469, 475]
2. The State remains free to undo the effects of past discrimination in permissible
ways that do not involve classification by race - for example, by according a
contracting preference to small or new businesses or to actual victims of
discrimination who can be identified. In the latter instance, the classification
would not be based on race but on the fact that the victims were wronged. Pp.
526-528.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion
of the Court with respect to Parts I, III-B, and IV, in which REHNQUIST, C. J.,
and WHITE, STEVENS, and KENNEDY, JJ., joined, an opinion with respect to
Part II, in which REHNQUIST, C. J., and WHITE, J., joined, and an opinion with
respect to Parts III-A and V, in which REHNQUIST, C. J., and WHITE and
KENNEDY, JJ., joined. STEVENS, J., post, p. 511, and KENNEDY, J., post, p.
518, filed opinions concurring in part and concurring in the judgment. SCALIA,
J., filed an opinion concurring in the judgment, post, p. 520. MARSHALL, J.,
filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined,
post, p. 528. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN,
J., joined, post, p. 561.
John Payton argued the cause for appellant. With him on the briefs were Mark S.
Hersh, Drew St. J. Carneal, Michael L. Sarahan, Michael K. Jackson, and John H.
Pickering.
Walter H. Ryland argued the cause and filed a brief for appellee.
118
Substantial Rights – Gender Equality
FRONTIERO v. RICHARDSON, 411 U.S. 677 (1973)
No. 71-1694.
Argued January 17, 1973
Decided May 14, 1973
A married woman Air Force officer (hereafter appellant) sought increased
benefits for her husband as a "dependent" under 37 U.S.C. 401, 403, and 10
U.S.C. 1072, 1076. Those statutes provide, solely for administrative convenience,
that spouses of male members of the uniformed services are dependents for
purposes of obtaining increased quarters allowances and medical and dental
benefits, but that spouses of female members are not dependents unless they are
in fact dependent for over one-half of their support. When her application was
denied for failure to satisfy the statutory dependency standard, appellant and her
husband brought this suit in District Court, contending that the statutes deprived
servicewomen of due process. From that Court's adverse ruling, they took a direct
appeal. Held: The judgment is reversed. Pp. 682-691; 691-692.
341 F. Supp. 201, reversed.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE DOUGLAS, MR.
JUSTICE WHITE, and MR. JUSTICE MARSHALL, concluded that 37 U.S.C.
401, 403 and 10 U.S.C. 1072, 1076, as inherently suspect statutory classifications
based on sex, are so unjustifiably discriminatory as to violate the Due Process
Clause of the Fifth Amendment. Pp. 682-691.
MR. JUSTICE STEWART concluded that the challenged statutes work an
invidious discrimination in violation of the Constitution. Reed v. Reed. 404 U.S.
71 . P. 691.
MR. JUSTICE POWELL, joined by THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN, while agreeing that the statutes deprive servicewomen of due
process, concluded that in the light of Reed v. Reed, 404 U.S. 71 . and the fact
that the Equal Rights Amendment has been submitted to the States for
ratification, it is inappropriate to decide at this time whether sex is a suspect
classification. Pp. 691-692. [411 U.S. 677, 678]
BRENNAN, J., announced the Court's judgment and delivered an opinion, in
which DOUGLAS, WHITE, and MARSHALL, JJ., joined. STEWART, J., filed a
statement concurring in the judgment, post, p. 691. POWELL, J., filed an opinion
concurring in the judgment, in which BURGER, C. J., and BLACKMUN, J.,
joined, post, p. 691. REHNQUIST, J., filed a dissenting statement, post, p. 691.
Joseph J. Levin, Jr., argued the cause for appellants. With him on the brief was
Morris S. Dees, Jr.
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Samuel Huntington argued the cause for appellees. On the brief were Solicitor
General Griswold, Assistant Attorney General Wood, and Mark L. Evans.
Ruth Bader Ginsburg argued the cause for the American Civil Liberties Union as
amicus curiae urging reversal. With her on the brief was Melvin L. Wulf.
MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion
in which MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR. JUSTICE
MARSHALL join.
The question before us concerns the right of a female member of the uniformed
services 1 to claim her spouse as a "dependent" for the purposes of obtaining
increased quarters allowances and medical and dental benefits under 37 U.S.C.
401, 403, and 10 U.S.C. 1072, 1076, on an equal footing with male members.
Under these statutes, a serviceman may claim his wife as a "dependent" without
regard to whether she is in fact dependent upon him for any part of her support.
37 U.S.C. 401 (1); 10 U.S.C. 1072 (2) (A). A servicewoman, on the other hand,
may not claim her husband as a "dependent" under these programs unless he is in
fact dependent upon her for over one-half of his support. [411 U.S. 677, 679] 37
U.S.C. 401; 10 U.S.C. 1072 (2) (C). 2 Thus, the question for decision is whether
this difference in treatment constitutes an unconstitutional discrimination against
servicewomen in violation of the Due Process Clause of the Fifth Amendment. A
three-judge District Court for the Middle District of Alabama, one judge
dissenting, rejected this contention and sustained the constitutionality of the
provisions of the statutes making this distinction. 341 F. Supp. 201 (1972). We
noted probable jurisdiction. 409 U.S. 840 (1972). We reverse.
I
In an effort to attract career personnel through reenlistment, Congress established,
in 37 U.S.C. 401 et seq., and 10 U.S.C. 1071 et seq., a scheme for the provision
of fringe benefits to members of the uniformed services on a competitive basis
with business and industry. 3 Thus, under 37 U.S.C. 403, a member of the
uniformed services with dependents is entitled to an [411 U.S. 677, 680]
increased "basic allowance for quarters" and, under 10 U.S.C. 1076, a member's
dependents are provided comprehensive medical and dental care.
Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought
increased quarters allowances, and housing and medical benefits for her husband,
appellant Joseph Frontiero, on the ground that he was her "dependent." Although
such benefits would automatically have been granted with respect to the wife of a
male member of the uniformed services, appellant's application was denied
because she failed to demonstrate that her husband was dependent on her for
more than one-half of his support. 4 Appellants then commenced this suit,
contending that, by making this distinction, the statutes unreasonably
discriminate on the basis of sex in violation of the Due Process Clause of the
Fifth Amendment. 5 In essence, appellants asserted that the discriminatory impact
of the statutes is twofold: first, as a procedural matter, a female member is
required to demonstrate her spouse's dependency, while no such burden is
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imposed upon male members; and, second, as a substantive matter, a male
member who does not provide more than one-half of his wife's support receives
benefits, while a similarly situated female member is denied such benefits.
Appellants therefore sought a permanent injunction [411 U.S. 677, 681] against
the continued enforcement of these statutes and an order directing the appellees to
provide Lieutenant Frontiero with the same housing and medical benefits that a
similarly situated male member would receive.
Although the legislative history of these statutes sheds virtually no light on the
purposes underlying the differential treatment accorded male and female
members, 6 a majority of the three-judge District Court surmised that Congress
might reasonably have concluded that, since the husband in our society is
generally the "bread-winner" in the family - and the wife typically the
"dependent" partner - "it would be more economical to require married female
members claiming husbands to prove actual dependency than to extend the
presumption of dependency to such members." 341 F. Supp., at 207. Indeed,
given the fact that approximately 99% of all members of the uniformed services
are male, the District [411 U.S. 677, 682] Court speculated that such differential
treatment might conceivably lead to a "considerable saving of administrative
expense and manpower." Ibid.
II
At the outset, appellants contend that classifications based upon sex, like
classifications based upon race, 7 alienage, 8 and national origin, 9 are inherently
suspect and must therefore be subjected to close judicial scrutiny. We agree and,
indeed, find at least implicit support for such an approach in our unanimous
decision only last Term in Reed v. Reed, 404 U.S. 71 (1971).
In Reed, the Court considered the constitutionality of an Idaho statute providing
that, when two individuals are otherwise equally entitled to appointment as
administrator of an estate, the male applicant must be preferred to the female.
Appellant, the mother of the deceased, and appellee, the father, filed competing
petitions for appointment as administrator of their son's estate. Since the parties,
as parents of the deceased, were members of the same entitlement class, the
statutory preference was invoked and the father's petition was therefore granted.
Appellant claimed that this statute, by giving a mandatory preference to males
over females without regard to their individual qualifications, violated the Equal
Protection Clause of the Fourteenth Amendment.
The Court noted that the Idaho statute "provides that different treatment be
accorded to the applicants on the basis of their sex; it thus establishes a
classification subject [411 U.S. 677, 683] to scrutiny under the Equal Protection
Clause." 404 U.S., at 75 . Under "traditional" equal protection analysis, a
legislative classification must be sustained unless it is "patently arbitrary" and
bears no rational relationship to a legitimate governmental interest. See Jefferson
v. Hackney, 406 U.S. 535, 546 (1972); Richardson v. Belcher, 404 U.S. 78 ,81
(1971); Flemming v. Nestor, 363 U.S. 603, 611 (1960); McGowan v. Maryland,
366 U.S. 420 ,426 (1961); Dandridge v. Williams, 397 U.S. 471, 485 (1970).
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In an effort to meet this standard, appellee contended that the statutory scheme
was a reasonable measure designed to reduce the workload on probate courts by
eliminating one class of contests. Moreover, appellee argued that the mandatory
preference for male applicants was in itself reasonable since "men [are] as a rule
more conversant with business affairs than . . . women." 10 Indeed, appellee
maintained that "it is a matter of common knowledge, that women still are not
engaged in politics, the professions, business or industry to the extent that men
are." 11 And the Idaho Supreme Court, in upholding the constitutionality of this
statute, suggested that the Idaho Legislature might reasonably have "concluded
that in general men are better qualified to act as an administrator than are
women." 12
Despite these contentions, however, the Court held the statutory preference for
male applicants unconstitutional. In reaching this result, the Court implicitly
rejected appellee's apparently rational explanation of the statutory scheme, and
concluded that, by ignoring the individual qualifications of particular applicants,
the challenged statute provided "dissimilar treatment for men and women who are
. . . similarly situated." 404 U.S., [411 U.S. 677, 684] at 77. The Court therefore
held that, even though the State's interest in achieving administrative efficiency
"is not without some legitimacy," "[t]o give a mandatory preference to members
of either sex over members of the other, merely to accomplish the elimination of
hearings on the merits, is to make the very kind of arbitrary legislative choice
forbidden by the [Constitution] . . . ." Id., at 76. This departure from "traditional"
rational-basis analysis with respect to sex-based classifications is clearly justified.
There can be no doubt that our Nation has had a long and unfortunate history of
sex discrimination. 13 Traditionally, such discrimination was rationalized by an
attitude of "romantic paternalism" which, in practical effect, put women, not on a
pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted
in our national consciousness that, 100 years ago, a distinguished Member of this
Court was able to proclaim:
"Man is, or should be, woman's protector and defender. The natural and proper
timidity and delicacy which belongs to the female sex evidently unfits it for many
of the occupations of civil life. The constitution of the family organization, which
is founded in the divine ordinance, as well as in the nature of things, indicates the
domestic sphere as that which properly belongs to the domain and functions of
womanhood. The harmony, not to say identity, of interests and views which
belong, or should belong, to the family institution is repugnant to the idea of a
woman adopting a distinct and [411 U.S. 677, 685] independent career from that
of her husband. . . .
". . . The paramount destiny and mission of woman are to fulfil the noble and
benign offices of wife and mother. This is the law of the Creator." Bradwell v.
State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring).
As a result of notions such as these, our statute books gradually became laden
with gross, stereotyped distinctions between the sexes and, indeed, throughout
much of the 19th century the position of women in our society was, in many
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respects, comparable to that of blacks under the pre-Civil War slave codes.
Neither slaves nor women could hold office, serve on juries, or bring suit in their
own names, and married women traditionally were denied the legal capacity to
hold or convey property or to serve as legal guardians of their own children. See
generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5-6
(1969); G. Myrdal, An American Dilemma 1073 (20th anniversary ed. 1962).
And although blacks were guaranteed the right to vote in 1870, women were
denied even that right - which is itself "preservative of other basic civil and
political rights" 14 - until adoption of the Nineteenth Amendment half a century
later.
It is true, of course, that the position of women in America has improved
markedly in recent decades. 15 [411 U.S. 677, 686] Nevertheless, it can hardly
be doubted that, in part because of the high visibility of the sex characteristic, 16
women still face pervasive, although at times more subtle, discrimination in our
educational institutions, in the job market and, perhaps most conspicuously, in the
political arena. 17 See generally K. Amundsen, The Silenced Majority: Women
and American Democracy (1971); The President's Task Force on Women's
Rights and Responsibilities, A Matter of Simple Justice (1970).
Moreover, since sex, like race and national origin, is an immutable characteristic
determined solely by the accident of birth, the imposition of special disabilities
upon the members of a particular sex because of their sex would seem to violate
"the basic concept of our system that legal burdens should bear some relationship
to individual responsibility . . . ." Weber v. Aetna Casualty & Surety Co., 406
U.S. 164, 175 (1972). And what differentiates sex from such nonsuspect statuses
as intelligence or physical disability, and aligns it with the recognized suspect
criteria, is that the sex characteristic frequently bears no relation to ability to
perform or contribute to society. 18 As a result, statutory distinctions [411 U.S.
677, 687] between the sexes often have the effect of invidiously relegating the
entire class of females to inferior legal status without regard to the actual
capabilities of its individual members.
We might also note that, over the past decade, Congress has itself manifested an
increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights
Act of 1964, for example, Congress expressly declared that no employer, labor
union, or other organization subject to the provisions of the Act shall discriminate
against any individual on the basis of "race, color, religion, sex, or national
origin." 19 Similarly, the Equal Pay Act of 1963 provides that no employer
covered by the Act "shall discriminate . . . between employees on the basis of
sex." 20 And 1 of the Equal Rights Amendment, passed by Congress on March
22, 1972, and submitted to the legislatures of the States for ratification, declares
that "[e]quality of rights under the law shall not be denied or abridged by the
United States or by any State on account of sex." 21 Thus, Congress itself has
concluded that classifications based upon sex are inherently invidious, and this
conclusion of a coequal [411 U.S. 677, 688] branch of Government is not
without significance to the question presently under consideration. Cf. Oregon v.
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Mitchell, 400 U.S. 112, 240 , 248-249 (1970) (opinion of BRENNAN, WHITE,
and MARSHALL, JJ.); Katzenbach v. Morgan, 384 U.S. 641, 648 -649 (1966).
With these considerations in mind, we can only conclude that classifications
based upon sex, like classifications based upon race, alienage, or national origin,
are inherently suspect, and must therefore be subjected to strict judicial scrutiny.
Applying the analysis mandated by that stricter standard of review, it is clear that
the statutory scheme now before us is constitutionally invalid.
III
The sole basis of the classification established in the challenged statutes is the sex
of the individuals involved. Thus, under 37 U.S.C. 401, 403, and 10 U.S.C. 1072,
1076, a female member of the uniformed services seeking to obtain housing and
medical benefits for her spouse must prove his dependency in fact, whereas no
such burden is imposed upon male members. In addition, the statutes operate so
as to deny benefits to a female member, such as appellant Sharron Frontiero, who
provides less than one-half of her spouse's support, while at the same time
granting such benefits to a male member who likewise provides less than one-half
of his spouse's support. Thus, to this extent at least, it may fairly be said that these
statutes command "dissimilar treatment for men and women who are . . . similarly
situated." Reed v. Reed, 404 U.S., at 77 .
Moreover, the Government concedes that the differential treatment accorded men
and women under these statutes serves no purpose other than mere
"administrative convenience." In essence, the Government maintains that, as an
empirical matter, wives in our society frequently are dependent upon their
husbands, while husbands [411 U.S. 677, 689] rarely are dependent upon their
wives. Thus, the Government argues that Congress might reasonably have
concluded that it would be both cheaper and easier simply conclusively to
presume that wives of male members are financially dependent upon their
husbands, while burdening female members with the task of establishing
dependency in fact. 22
The Government offers no concrete evidence, however, tending to support its
view that such differential treatment in fact saves the Government any money. In
order to satisfy the demands of strict judicial scrutiny, the Government must
demonstrate, for example, that it is actually cheaper to grant increased benefits
with respect to all male members, than it is to determine which male members are
in fact entitled to such benefits and to grant increased benefits only to those
members whose wives actually meet the dependency requirement. Here,
however, there is substantial evidence that, if put to the test, many of the wives of
male members would fail to qualify for benefits. 23 And in light of the fact that
the [411 U.S. 677, 690] dependency determination with respect to the husbands
of female members is presently made solely on the basis of affidavits, rather than
through the more costly hearing process, 24 the Government's explanation of the
statutory scheme is, to say the least, questionable.
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In any case, our prior decisions make clear that, although efficacious
administration of governmental programs is not without some importance, "the
Constitution recognizes higher values than speed and efficiency." Stanley v.
Illinois, 405 U.S. 645, 656 (1972). And when we enter the realm of "strict judicial
scrutiny," there can be no doubt that "administrative convenience" is not a
shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v.
Thompson, 394 U.S. 618 (1969); Carrington v. Rash, 380 U.S. 89 (1965). On the
contrary, any statutory scheme which draws a sharp line between the sexes, solely
for the purpose of achieving administrative convenience, necessarily commands
"dissimilar treatment for men and women who are . . . similarly situated," and
therefore involves the "very kind of arbitrary legislative choice forbidden by the
[Constitution] . . . ." Reed v. Reed, 404 U.S., at 77 , 76. We therefore conclude
that, by according differential treatment to male and female members of the
uniformed services for the sole purpose of achieving administrative [411 U.S.
677, 691] convenience, the challenged statutes violate the Due Process Clause
of the Fifth Amendment insofar as they require a female member to prove the
dependency of her husband. 25
Reversed.
MR. JUSTICE STEWART concurs in the judgment, agreeing that the statutes
before us work an invidious discrimination in violation of the Constitution. Reed
v. Reed, 404 U.S. 71 .
MR. JUSTICE REHNQUIST dissents for the reasons stated by Judge Rives in his
opinion for the District Court, Frontiero v. Laird, 341 F. Supp. 201 (1972).
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SKINNER v. STATE OF OKL. EX REL. WILLIAMSON,
316 U.S. 535 (1942)
No. 782.
Argued and Submitted May 6, 1942.
Decided June 1, 1942.
[316 U.S. 535, 536] Messrs. W. J. Hulsey, H. I. Aston, and Guy L. Andrews, all
of McAlester, Okl., for petitioner.
Mr. Mac Q. Williamson, Atty. Gen. of Oklahoma, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
This case touches a sensitive and important area of human rights. Oklahoma
deprives certain individuals of a right which is basic to the perpetuation of a racethe right to have offspring. Oklahoma has decreed the enforcement of its law
against petitioner, overruling his claim that it violated the Fourteenth
Amendment. Because that decision raised grave and substantial constitutional
questions, we granted the petition for certiorari.
The statute involved is Oklahoma's Habitual Criminal Sterilization Act.
Okl.St.Ann. Tit. 57, 171, et seq.; L.1935, p. 94 et seq. That Act defines an
'habitual criminal' as a person who, having been convicted two or more times for
crimes 'amounting to felonies involving moral turpitude' either in an Oklahoma
court or in a court of any other State, is thereafter convicted of such a felony in
Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal
institution. 173. Machinery is provided for the institution by the Attorney General
of a proceeding against such a person in the Oklahoma courts for a judgment that
such person shall be rendered sexually sterile. 176, 177. Notice, an opportunity to
be heard, and the right to a jury trial are provided. 177-181. The issues triable in
such a proceeding are narrow and con- [316 U.S. 535, 537] fined. If the court or
jury finds that the defendant is an 'habitual criminal' and that he 'may be rendered
sexually sterile without detriment to his or her general health', then the court
'shall render judgment to the effect that said defendant be rendered sexually
sterile' 182, by the operation of vasectomy in case of a male and of salpingectomy
in case of a female. 174. Only one other provision of the Act is material here and
that is 195 which provides that 'offenses arising out of the violation of the
prohibitory laws, revenue acts, embezzlement, or political offenses, shall not
come or be considered within the terms of this Act.'
Petitioner was convicted in 1926 of the crime of stealing chickens and was
sentenced to the Oklahoma State Reformatory. In 1929 he was convicted of the
crime of robbery with fire arms and was sentenced to the reformatory. In 1934 he
was convicted again of robbery with firearms and was sentenced to the
penitentiary. He was confined there in 1935 when the Act was passed. In 1936
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Substantial Rights – The Right to Procreate
the Attorney General instituted proceedings against him. Petitioner in his answer
challenged the Act as unconstitutional by reason of the Fourteenth Amendment.
A jury trial was had. The court instructed the jury that the crimes of which
petitioner had been convicted were felonies involving moral turpitude and that
the only question for the jury was whether the operation of vasectomy could be
performed on petitioner without detriment to his general health. The jury found
that it could be. A judgment directing that the operation of vasectomy be
performed on petitioner was affirmed by the Supreme Court of Oklahoma by a
five to four decision. 189 Okl. 235, 115 P.2d 123.
Several objections to the constitutionality of the Act have been pressed upon us.
It is urged that the Act cannot be sustained as an exercise of the police power in
view [316 U.S. 535, 538] of the state of scientific authorities respecting
inheritability of criminal traits. 1 It is argued that due process is lacking because
under this Act, unlike the act2 upheld in Buck v. Bell, 274 U.S. 200 , 47 S.Ct.
584, the defendant is given no opportunity to be heard on the issue as to whether
he is the probable potential parent of socially undesirable offspring. See Davis v.
Berry, D.C., 216 F. 413; Williams v. Smith, 190 Ind. 526, 131 N.E. 2. It is also
suggested that the Act is penal in character and that the sterilization provided for
is cruel and unusual punishment and violative of the Fourteenth Amendment. See
Davis v. Berry, supra. Cf. State v. Feilen, 70 Wash. 65, 126 P. 75, 41
L.R.A.,N.S., 418, Ann.Cas.1914B, 512; Mickle v. Henrichs, D.C., 262 F. 687.
We pass those points without intimating an opinion on them, for there is a feature
of the Act which clearly condemns it. That is its failure to meet the requirements
of the equal protection clause of the Fourteenth Amendment.
We do not stop to point out all of the inequalities in this Act. A few examples will
suffice. In Oklahoma grand larceny is a felony. Okl.St. Ann. Tit. 21, 1705 ( 5).
Larceny is grand larceny when the property taken exceeds $20 in value. Id. 1704.
Embezzlement is punishable 'in the manner prescribed for feloniously stealing
property of the value of that embezzled.' Id. 1462. Hence he who embezzles
property worth more than $ 20 is guilty of a felony. A clerk who appropriates
over $20 from his employer's till (id. 1456) and a stranger who steals the same
[316 U.S. 535, 539] amount are thus both guilty of felonies. If the latter repeats
his act and is convicted three times, he may be sterilized. But the clerk is not
subject to the pains and penalties of the Act no matter how large his
embezzlements nor how frequent his convictions. A person who enters a chicken
coop and steals chickens commits a felony (id. 1719); and he may be sterilized if
he is thrice convicted. If, however, he is a bailee of the property and fraudulently
appropriates it, he is an embezzler. Id. 1455. Hence no matter how habitual his
proclivities for embezzlement are and no matter how often his conviction, he may
not be sterilized. Thus the nature of the two crimes is intrinsically the same and
they are punishable in the same manner. Furthermore, the line between them
follows close distinctions-distinctions comparable to those highly technical ones
which shaped the Common law as to 'trespass' or 'taking'. Bishop, Criminal Law,
9th Ed., Vol. 2, 760, 799, et seq. There may be larceny by fraud rather than
embezzlement even where the owner of the personal property delivers it to the
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defendant, if the latter has at that time 'a fraudulent intention to make use of the
possession as a means of converting such property to his own use, and does so
convert it'. Bivens v. State, 6 Okl. Cr. 521, 529, 120 P. 1033, 1036. If the
fraudulent intent occurs later and the defendant converts the property, he is guilty
of embezzlement. Bivens v. State, supra; Flohr v. Territory, 14 Okl. 477, 78 P.
565. Whether a particular act is larceny by fraud or embezzlement thus turns not
on the intrinsic quality of the act but on when the felonious intent arose-a
question for the jury under appropriate instructions. Bivens v. State, supra; Riley
v. State, 64 Okl.Cr. 183, 78 P.2d 712.
It was stated in Buck v. Bell, supra, that the claim that state legislation violates
the equal protection clause of the Fourteenth Amendment is 'the usual last resort
of constitutional arguments.' 274 U.S. page 208, 47 S.Ct. page 585. Under our
con- [316 U.S. 535, 540] stitutional system the States in determining the reach
and scope of particular legislation need not provide 'abstract symmetry'. Patsone
v. Pennsylvania, 232 U.S. 138, 144 , 34 S.Ct. 281, 282. They may mark and set
apart the classes and types of problems according to the needs and as dictated or
suggested by experience. See People of State of New York ex rel. Bryant v.
Zimmerman, 278 U.S. 63 , 49 S.Ct. 61, 62 A.L.R. 785, and cases cited. It was in
that connection that Mr. Justice Holmes, speaking for the Court in Bain Peanut
Co. v. Pinson, 282 U.S. 499, 501 , 51 S.Ct. 228, 229, stated, 'We must remember
that the machinery of government would not work if it were not allowed a little
play in its joints.' Only recently we reaffirmed the view that the equal protection
clause does not prevent the legislture from recognizing 'degrees of evil' (Truax v.
Raich, 239 U.S. 33, 43 , 36 S.Ct. 7, 11, L.R.A.1916D, 545, Ann.Cas.1917B, 283)
by our ruling in Tigner v. Texas, 310 U.S. 141, 147 , 60 S.Ct. 879, 882, 130
A.L.R. 1321, that 'the Constitution does not require things which are different in
fact or opinion to be treated in law as though they were the same.' And see
Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362 , 60 S. Ct.
968. Thus, if we had here only a question as to a State's classification of crimes,
such as embezzlement or larceny, no substantial federal question would be raised.
See Moore v. Missouri, 159 U.S. 673 , 16 S.Ct. 179; Hawker v. New York, 170
U.S. 189 , 18 S. Ct. 573; Finley v. California, 222 U.S. 28 , 32 S.Ct. 13; Patsone
v. Pennsylvania, supra. For a State is not constrained in the exercise of its police
power to ignore experience which marks a class of offenders or a family of
offenses for special treatment. Nor is it prevented by the equal protection clause
from confining 'its restrictions to those classes of cases where the need is deemed
to be clearest'. Miller v. Wilson, 236 U.S. 373, 384 , 35 S.Ct. 342, 344,
L.R.A.1915F, 829. And see McLean v. Arkansas, 211 U.S. 539 , 29 S.Ct. 206. As
stated in Buck v. Bell, supra, 274 U.S. page 208, 47 S.Ct. page 585, '... the law
does all that is needed when it does all that it can, indicates a policy, applies it to
all within the lines, and seeks to bring within the lines all similarly situated so far
and so fast as its means allow.' [316 U.S. 535, 541] But the instant legislation
runs afoul of the equal protection clause, though we give Oklahoma that large
deference which the rule of the foregoing cases requires. We are dealing here
with legislation which involves one of the basic civil rights of man. Marriage and
procreation are fundamental to the very existence and survival of the race. The
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Substantial Rights – The Right to Procreate
power to sterilize, if exercised, may have subtle, farreaching and devastating
effects. In evil or reckless hands it can cause races or types which are inimical to
the dominant group to wither and disappear. There is no redemption for the
individual whom the law touches. Any experiment which the State conducts is to
his irreparable injury. He is forever deprived of a basic liberty. We mention these
matters not to reexamine the scope of the police power of the States. We advert to
them merely in emphasis of our view that strict scrutiny of the classification
which a State makes in a sterilization law is essential, lest unwittingly or
otherwise invidious discriminations are made against groups or types of
individuals in violation of the constitutional guaranty of just and equal laws. The
guaranty of 'equal protection of the laws is a pledge of the protection of equal
laws.' Yick Wo v. Hopkins, 118 U.S. 356, 369 , 6 S.Ct. 1064, 1070. When the
law lays an unequal hand on those who have committed intrinsically the same
quality of offense and sterilizes one and not the other, it has made as an invidious
a discrimination as if it had selected a particular race or nationality for oppressive
treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U.S. 337 , 59 S.Ct.
232. Sterilization of those who have thrice committed grand larceny with
immunity for those who are embezzlers is a clear, pointed, unmistakable
discrimination. Oklahoma makes no attempt to say that he who commits larceny
by trespass or trick or fraud has biologically inheritable traits which he who
commits embezzlement lacks. Oklahoma's line between larceny by fraud and
embezzlement is determined, as we have noted, 'with reference to the time when
the [316 U.S. 535, 542] fraudulent intent to convert the property to the taker's
own use' arises. Riley v. State, supra, 64 Okl.Cr. page 189, 78 P.2d page 715. We
have not the slightest basis for inferring that that line has any significance in
eugenics nor that the inheritability of criminal traits follows the neat legal
distinctions which the law has marked between those two offenses. In terms of
fines and imprisonment the crimes of larceny and embezzlement rate the same
under the Oklahoma code. Only when it comes to sterilization are the pains and
penalties of the law different. The equal protection clause would indeed be a
formula of empty words if such conspicuously artificial lines could be drawn. See
Smith v. Wayne Probate Judge, 231 Mich. 409, 420, 421, 204 N.W. 140, 40
A.L.R. 515. In Buck v. Bell, supra, the Virginia statute was upheld though it
applied only to feebleminded persons in institutions of the State. But it was
pointed out that 'so far as the operations enable those who otherwise must be kept
confined to be returned to the world, and thus open the asylum to others, the
equality aimed at will be more nearly reached.' 274 U.S. page 208, 47 S.Ct. page
585. Here there is no such saving feature. Embezzlers are forever free. Those who
steal or take in other ways are not. If such a classification were permitted, the
technical Common law concept of a 'trespass' (Bishop, Criminal Law, 9th Ed.,
vol. 1, 566, 567) based on distinctions which are 'very largely dependent upon
history for explanation' (Holmes, The Common law, p. 73) could readily become
a rule of human genetics.
It is true that the Act has a broad severability clause. 3 But we will not endeavor
to determine whether its applica- [316 U.S. 535, 543] tion would solve the equal
protection difficulty. The Supreme Court of Oklahoma sustained the Act without
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reference to the severability clause. We have therefore a situation where the Act
as construed and applied to petitioner is allowed to perpetuate the discrimination
which we have found to be fatal. Whether the severability clause would be so
applied as to remove this particular constitutional objection is a question which
may be more appropriately left for adjudication by the Oklahoma court. Dorchy
v. Kansas, 264 U.S. 286 , 44 S.Ct. 323. That is reemphasized here by our
uncertainty as to what excision, if any, would be made as a matter of Oklahoma
law. Cf. Smith v. Cahoon, 283 U.S. 553 , 51 S.Ct. 582. It is by no means clear
whether if an excision were made, this particular constitutional difficulty might
be solved by enlarging on the one hand or contracting on the other (cf. Mr.
Justice Brandeis dissenting, National Life Insurance Co. v. United States, 277
U.S. 508, 534 , 535 S., 48 S.Ct. 591, 598) the class of criminals who might be
sterilized.
REVERSED.
Mr. Chief Justice STONE concurring.
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)
No. 496.
Argued March 29-30, 1965.
Decided June 7, 1965.
Appellants, the Executive Director of the Planned Parenthood League of
Connecticut, and its medical director, a licensed physician, were convicted as
accessories for giving married persons information and medical advice on how to
prevent conception and, following examination, prescribing a contraceptive
device or material for the wife's use. A Connecticut statute makes it a crime for
any person to use any drug or article to prevent conception. Appellants claimed
that the accessory statute as applied violated the Fourteenth Amendment. An
intermediate appellate court and the State's highest court affirmed the judgment.
Held:
1. Appellants have standing to assert the constitutional rights of the married
people. Tileston v. Ullman, 318 U.S. 44 , distinguished. P. 481.
2. The Connecticut statute forbidding use of contraceptives violates the right of
marital privacy which is within the penumbra of specific guarantees of the Bill of
Rights. Pp. 481-486.
151 Conn. 544, 200 A. 2d 479, reversed.
Thomas I. Emerson argued the cause for appellants. With him on the briefs was
Catherine G. Roraback.
Joseph B. Clark argued the cause for appellee. With him on the brief was Julius
Maretz.
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Substantial Rights – The Right to Procreate
Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour and
Eleanor M. Fox for Dr. John M. Adams et al.; by Morris L. Ernst, Harriet F.
Pilpel and Nancy F. Wechsler for the Planned Parenthood Federation of America,
Inc.; by Alfred L. Scanlon for the Catholic Council on Civil Liberties, and by
Rhoda H. Karpatkin, Melvin L. Wulf and Jerome E. Caplan for the American
Civil Liberties Union et al. [381 U.S. 479, 480]
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Appellant Griswold is Executive Director of the Planned Parenthood League of
Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale
Medical School who served as Medical Director for the League at its Center in
New Haven - a center open and operating from November 1 to November 10,
1961, when appellants were arrested.
They gave information, instruction, and medical advice to married persons as to
the means of preventing conception. They examined the wife and prescribed the
best contraceptive device or material for her use. Fees were usually charged,
although some couples were serviced free.
The statutes whose constitutionality is involved in this appeal are 53-32 and 54196 of the General Statutes of Connecticut (1958 rev.). The former provides:
"Any person who uses any drug, medicinal article or instrument for the purpose
of preventing conception shall be fined not less than fifty dollars or imprisoned
not less than sixty days nor more than one year or be both fined and imprisoned."
Section 54-196 provides:
"Any person who assists, abets, counsels, causes, hires or commands another to
commit any offense may be prosecuted and punished as if he were the principal
offender."
The appellants were found guilty as accessories and fined $100 each, against the
claim that the accessory statute as so applied violated the Fourteenth Amendment.
The Appellate Division of the Circuit Court affirmed. The Supreme Court of
Errors affirmed that judgment. 151 Conn. 544, 200 A. 2d 479. We noted probable
jurisdiction. 379 U.S. 926 . [381 U.S. 479, 481]
We think that appellants have standing to raise the constitutional rights of the
married people with whom they had a professional relationship. Tileston v.
Ullman, 318 U.S. 44 , is different, for there the plaintiff seeking to represent
others asked for a declaratory judgment. In that situation we thought that the
requirements of standing should be strict, lest the standards of "case or
controversy" in Article III of the Constitution become blurred. Here those doubts
are removed by reason of a criminal conviction for serving married couples in
violation of an aiding-and-abetting statute. Certainly the accessory should have
standing to assert that the offense which he is charged with assisting is not, or
cannot constitutionally be, a crime.
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This case is more akin to Truax v. Raich, 239 U.S. 33 , where an employee was
permitted to assert the rights of his employer; to Pierce v. Society of Sisters, 268
U.S. 510 , where the owners of private schools were entitled to assert the rights of
potential pupils and their parents; and to Barrows v. Jackson, 346 U.S. 249 ,
where a white defendant, party to a racially restrictive covenant, who was being
sued for damages by the covenantors because she had conveyed her property to
Negroes, was allowed to raise the issue that enforcement of the covenant violated
the rights of prospective Negro purchasers to equal protection, although no Negro
was a party to the suit. And see Meyer v. Nebraska, 262 U.S. 390 ; Adler v.
Board of Education, 342 U.S. 485 ; NAACP v. Alabama, 357 U.S. 449 ; NAACP
v. Button, 371 U.S. 415 . The rights of husband and wife, pressed here, are likely
to be diluted or adversely affected unless those rights are considered in a suit
involving those who have this kind of confidential relation to them.
Coming to the merits, we are met with a wide range of questions that implicate
the Due Process Clause of the Fourteenth Amendment. Overtones of some
arguments [381 U.S. 479, 482] suggest that Lochner v. New York, 198 U.S. 45 ,
should be our guide. But we decline that invitation as we did in West Coast Hotel
Co. v. Parrish, 300 U.S. 379 ; Olsen v. Nebraska, 313 U.S. 236 ; Lincoln Union v.
Northwestern Co., 335 U.S. 525 ; Williamson v. Lee Optical Co., 348 U.S. 483 ;
Giboney v. Empire Storage Co., 336 U.S. 490 . We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch
economic problems, business affairs, or social conditions. This law, however,
operates directly on an intimate relation of husband and wife and their physician's
role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of
Rights. The right to educate a child in a school of the parents' choice - whether
public or private or parochial - is also not mentioned. Nor is the right to study any
particular subject or any foreign language. Yet the First Amendment has been
construed to include certain of those rights.
By Pierce v. Society of Sisters, supra, the right to educate one's children as one
chooses is made applicable to the States by the force of the First and Fourteenth
Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to
study the German language in a private school. In other words, the State may not,
consistently with the spirit of the First Amendment, contract the spectrum of
available knowledge. The right of freedom of speech and press includes not only
the right to utter or to print, but the right to distribute, the right to receive, the
right to read (Martin v. Struthers, 319 U.S. 141, 143 ) and freedom of inquiry,
freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S.
183, 195 ) - indeed the freedom of the entire university community. Sweezy v.
New Hampshire, 354 U.S. 234, 249 -250, 261-263; Barenblatt v. United States,
360 U.S. 109, 112 ; Baggett v. Bullitt, 377 U.S. 360, 369 . Without [381 U.S.
479, 483] those peripheral rights the specific rights would be less secure. And so
we reaffirm the principle of the Pierce and the Meyer cases.
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In NAACP v. Alabama, 357 U.S. 449, 462 , we protected the "freedom to
associate and privacy in one's associations," noting that freedom of association
was a peripheral First Amendment right. Disclosure of membership lists of a
constitutionally valid association, we held, was invalid "as entailing the
likelihood of a substantial restraint upon the exercise by petitioner's members of
their right to freedom of association." Ibid. In other words, the First Amendment
has a penumbra where privacy is protected from governmental intrusion. In like
context, we have protected forms of "association" that are not political in the
customary sense but pertain to the social, legal, and economic benefit of the
members. NAACP v. Button, 371 U.S. 415, 430 -431. In Schware v. Board of
Bar Examiners, 353 U.S. 232 , we held it not permissible to bar a lawyer from
practice, because he had once been a member of the Communist Party. The man's
"association with that Party" was not shown to be "anything more than a political
faith in a political party" (id., at 244) and was not action of a kind proving bad
moral character. Id., at 245-246.
Those cases involved more than the "right of assembly" - a right that extends to
all irrespective of their race or ideology. De Jonge v. Oregon, 299 U.S. 353 . The
right of "association," like the right of belief (Board of Education v. Barnette, 319
U.S. 624 ), is more than the right to attend a meeting; it includes the right to
express one's attitudes or philosophies by membership in a group or by affiliation
with it or by other lawful means. Association in that context is a form of
expression of opinion; and while it is not expressly included in the First
Amendment its existence is necessary in making the express guarantees fully
meaningful. [381 U.S. 479, 484]
The foregoing cases suggest that specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees that help give them life
and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion).
Various guarantees create zones of privacy. The right of association contained in
the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers "in any house" in
time of peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms the "right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures." The Fifth Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: "The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people."
The Fourth and Fifth Amendments were described in Boyd v. United States, 116
U.S. 616, 630 , as protection against all governmental invasions "of the sanctity
of a man's home and the privacies of life." * We recently referred [381 U.S. 479,
485] in Mapp v. Ohio, 367 U.S. 643, 656 , to the Fourth Amendment as creating
a "right to privacy, no less important than any other right carefully and
particularly reserved to the people." See Beaney, The Constitutional Right to
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Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw.
U. L. Rev. 216 (1960).
We have had many controversies over these penumbral rights of "privacy and
repose." See, e. g., Breard v. Alexandria, 341 U.S. 622, 626 , 644; Public Utilities
Comm'n v. Pollak, 343 U.S. 451 ; Monroe v. Pape, 365 U.S. 167 ; Lanza v. New
York, 370 U.S. 139 ; Frank v. Maryland, 359 U.S. 360 ; Skinner v. Oklahoma,
316 U.S. 535, 541 . These cases bear witness that the right of privacy which
presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees. And it concerns a law
which, in forbidding the use of contraceptives rather than regulating their
manufacture or sale, seeks to achieve its goals by means having a maximum
destructive impact upon that relationship. Such a law cannot stand in light of the
familiar principle, so often applied by this Court, that a "governmental purpose to
control or prevent activities constitutionally subject to state regulation may not be
achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms." NAACP v. Alabama, 377 U.S. 288, 307 . Would we
allow the police to search the sacred precincts of marital bedrooms for telltale
signs of the use of contraceptives? The [381 U.S. 479, 486] very idea is
repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights - older than our
political parties, older than our school system. Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social projects.
Yet it is an association for as noble a purpose as any involved in our prior
decisions.
Reversed.
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Substantial Rights – The Right to Die
CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990)
No. 88-1503.
Argued December 6, 1989
Decided June 25, 1990
Petitioner Nancy Cruzan is incompetent, having sustained severe injuries in an
automobile accident, and now lies in a Missouri state hospital in what is referred
to as a persistent vegetative state: generally, a condition in which a person
exhibits motor reflexes but evinces no indications of significant cognitive
function. The State is bearing the cost of her care. Hospital employees refused,
without court approval, to honor the request of Cruzan's parents, copetitioners
her, to terminate her artificial nutrition and hydration, since that would result in
death. A state trial court authorized the termination, finding that a person in
Cruzan's condition has a fundamental right under the State and Federal
Constitutions to direct or refuse the withdrawal of death-prolonging procedures,
and that Cruzan's expression to a former housemate that she would not wish to
continue her life if sick or injured unless she could live at least halfway normally
suggested that she would not wish to continue on with her nutrition and
hydration. The State Supreme Court reversed. While recognizing a right to refuse
treatment embodied in the common-law doctrine of informed consent, the court
questioned its applicability in this case. It also declined to read into the State
Constitution a broad right to privacy that would support an unrestricted right to
refuse treatment and expressed doubt that the Federal Constitution embodied such
a right. The court then decided that the State Living Will statute embodied a state
policy strongly favoring the preservation of life, and that Cruzan's statements to
her housemate were unreliable for the purpose of determining her intent. It
rejected the argument that her parents were entitled to order the termination of her
medical treatment, concluding that no person can assume that choice for an
incompetent in the absence of the formalities required by the Living Will statute
or clear and convincing evidence of the patient's wishes.
Held:
1. The United States Constitution does not forbid Missouri to require that
evidence of an incompetent's wishes as to the withdrawal of life-sustaining
treatment be proved by clear and convincing evidence. Pp. 269-285. [497 U.S.
261, 262]
(a) Most state courts have based a right to refuse treatment on the Common law
right to informed consent, see, e.g., In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d
266, 420 N.E.2d 64, or on both that right and a constitutional privacy right, see,
e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728,
370 N.E.2d 417. In addition to relying on state constitutions and the Common
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law, state courts have also turned to state statutes for guidance, see, e.g.,
Conservatorship of Drabick, 200 Cal.App. 3d 185, 245 Cal.Rptr. 840. However,
these sources are not available to this Court, where the question is simply whether
the Federal Constitution prohibits Missouri from choosing the rule of law which
it did. Pp. 269-278.
(b) A competent person has a liberty interest under the Due Process Clause in
refusing unwanted medical treatment. Cf., e.g., Jacobson v. Massachusetts, 197
U.S. 11, 24 -30. However, the question whether that constitutional right has been
violated must be determined by balancing the liberty interest against relevant
state interests. For purposes of this case, it is assumed that a competent person
would have a constitutionally protected right to refuse lifesaving hydration and
nutrition. This does not mean that an incompetent person should possess the same
right, since such a person is unable to make an informed and voluntary choice to
exercise that hypothetical right or any other right. While Missouri has in effect
recognized that, under certain circumstances, a surrogate may act for the patient
in electing to withdraw hydration and nutrition and thus cause death, it has
established a procedural safeguard to assure that the surrogate's action conforms
as best it may to the wishes expressed by the patient while competent. Pp. 280285.
(c) It is permissible for Missouri, in its proceedings, to apply a clear and
convincing evidence standard, which is an appropriate standard when the
individual interests at stake are both particularly important and more substantial
than mere loss of money, Santosky v. Kramer, 455 U.S. 745, 756 . Here, Missouri
has a general interest in the protection and preservation of human life, as well as
other, more particular interests, at stake. It may legitimately seek to safeguard the
personal element of an individual's choice between life and death. The State is
also entitled to guard against potential abuses by surrogates who may not act to
protect the patient. Similarly, it is entitled to consider that a judicial proceeding
regarding an incompetent's wishes may not be adversarial, with the added
guarantee of accurate factfinding that the adversary process brings with it. The
State may also properly decline to make judgments about the "quality" of a
particular individual's life, and simply assert an unqualified interest in the
preservation of human life to be weighed against the constitutionally protected
interests of the individual. It is self-evident that these interests are more
substantial, both on [497 U.S. 261, 263] an individual and societal level, than
those involved in a common civil dispute. The clear and convincing evidence
standard also serves as a societal judgment about how the risk of error should be
distributed between the litigants. Missouri may permissibly place the increased
risk of an erroneous decision on those seeking to terminate life-sustaining
treatment. An erroneous decision not to terminate results in a maintenance of the
status quo, with at least the potential that a wrong decision will eventually be
corrected or its impact mitigated by an event such as an advancement in medical
science or the patient's unexpected death. However, an erroneous decision to
withdraw such treatment is not susceptible of correction. Although Missouri's
proof requirement may have frustrated the effectuation of Cruzan's not-fully-
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Substantial Rights – The Right to Die
expressed desires, the Constitution does not require general rules to work
flawlessly. Pp. 280-285.
2. The State Supreme Court did not commit constitutional error in concluding
that the evidence adduced at trial did not amount to clear and convincing proof of
Cruzan's desire to have hydration and nutrition withdrawn. The trial court had not
adopted a clear and convincing evidence standard, and Cruzan's observations that
she did not want to live life as a "vegetable" did not deal in terms with
withdrawal of medical treatment or of hydration and nutrition. P. 285.
3. The Due Process Clause does not require a State to accept the "substituted
judgment" of close family members in the absence of substantial proof that their
views reflect the patient's. This Court's decision upholding a State's favored
treatment of traditional family relationships, Michael H. v. Gerald D., 491 U.S.
110 , may not be turned into a constitutional requirement that a State must
recognize the primacy of these relationships in a situation like this. Nor may a
decision upholding a State's right to permit family decisionmaking, Parham v.
J.R., 442 U.S. 584 , be turned into a constitutional requirement that the State
recognize such decisionmaking. Nancy Cruzan's parents would surely be
qualified to exercise such a right of "substituted judgment" were it required by the
Constitution. However, for the same reasons that Missouri may require clear and
convincing evidence of a patient's wishes, it may also choose to defer only to
those wishes, rather than confide the decision to close family members. Pp. 285287.
760 S.W.2d 408, affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE,
O'CONNOR, SCALIA, and KENNEDY, JJ., joined. O'CONNOR, J., post, p.
287, and SCALIA, J., post, p. 292, filed concurring opinions. BRENNAN, J.,
filed a dissenting opinion, in which MARSHALL and BLACKMUN, [497 U.S.
261, 264] JJ., joined, post, p. 301. STEVENS, J., filed a dissenting opinion,
post, p. 330.
William H. Colby argued the cause for petitioners. With him on the briefs were
David J. Waxse, Walter E. Williams, Edward J. Kelly III, John A. Powell, and
Steven R. Shapiro.
Robert L. Presson, Assistant Attorney General of Missouri, argued the cause for
respondent Director, Missouri Department of Health, et al. With him on the brief
were William L. Webster, Attorney General, and Robert Northcutt.
Thad C. McCanse, pro se, and David B. Mouton filed a brief for respondent
guardian ad litem.
Solicitor General Starr argued the cause for the United States as amicus curiae
urging affirmance. With him on the brief were Acting Assistant Attorney General
Schiffer, Deputy Solicitor General Merrill, and Brian J. Martin. *
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[ Footnote * ] Briefs of amici curiae urging reversal were filed for the AIDS Civil
Rights Project by Walter R. Allan; for the American Academy of Neurology by
John H. Pickering; for the American College of Physicians by Nancy J.
Bregstein; for the American Geriatrics Society by Keith R. Anderson; for the
American Hospital Association by Paul W. Armstrong; for the American Medical
Association et al. by Rex E. Lee, Carter G. Phillips, Elizabeth H. Esty, Jack R.
Bierig, Russell M. Pelton, Paul G. Gebhard, Laurie R. Rockett, and Henry Hart;
for the Colorado Medical Society et al. by Garth C. Grissom; for Concern for
Dying by Henry Putzel III and George J. Annas; for the Evangelical Lutheran
Church in America by Susan D. Reece Martyn and Henry J. Bourguignon; for the
General Board of Church and Society of the United Methodist Church by Thomas
S. Martin and Magda Lopez; for Missouri Hospitals et al. by Mark A. Thornhill,
E.J. Holland, Jr., and John C. Shepherd; for the National Hospice Organization by
Barbara F. Mishkin and Walter A. Smith, Jr.; for the National Academy of Elder
Law Attorneys by Robert K. Huffman; for the Society of Critical Care Medicine
et al. by Stephan E. Lawton; for the Society for the Right to Die, Inc., by Fenella
Rouse; for Wisconsin Bioethicists et al. by Robyn S. Shapiro, Charles H. Barr,
and Jay A. Gold; for Barbara Burgoon et al. by Vicki Gottlich, Leslie Blair Fried,
and Stephanie M. Edelstein; and for John E. McConnell et al. by Stephen A.
Wise.
Briefs of amici curiae urging affirmance were filed for Agudath Israel of America
by David Zwiebel; for the American Academy of Medical Ethics by James Bopp,
Jr.; for the Association of American Physicians and [497 U.S. 261, 265]
Surgeons et al. by Edward R. Grant and Kent Masterson Brown; for the
Association for Retarded Citizens of the United States et al. by James Bopp, Jr.,
Thomas J. Marzen, and Stanley S. Herr; for the Catholic Lawyers Guild of the
Archdiocese of Boston, Inc., by Calum B, Anderson and Leonard F. Zandrow,
Jr.; for the District Attorney of Milwaukee County, Wisconsin, by E. Michael
McCann, pro se, and John M. Stoiber; for Doctors for Life et al. by David O.
Danis and Gerard F. Hempstead; for Families for Life et al. by Robert L. Mauro;
for Focus on the Family et al. by Clarke D. Forsythe, Paul Benjamin Linton, and
H. Robert Showers; for Free Speech Advocates et al. by Thomas Patrick
Monaghan and Jay Alan Sekulow; for the International Anti-Euthanasia Task
Force et al. by Jordan Lorence; for the Knights of Columbus by James H. Burnley
IV, Robert J. Cynkar, and Carl A. Anderson; for the National Right to Life
Committee, Inc., by James Bopp, Jr.; for the New Jersey Right to Life
Committee, Inc., et al. by Donald D. Campbell and Anne M. Perone; for the
Rutherford Institute et al. by John W. Whitehead, James J. Knicely, David E.
Morris, William B. Hollberg, Amy Dougherty, Thomas W. Strahan, William
Bonner, John F. Southworth, Jr., and W. Charles Bundren; for the United States
Catholic Conference by Mark E. Chopko and Phillip H. Harris; for the Value of
Life Committee, Inc., by Walter M. Weber; and for Elizabeth Sadowski et al. by
Robert L. Mauro.
138
Substantial Rights – The Right to Die
Briefs of amici curiae were filed for the American Nurses Association et al. by
Diane Trace Warlick; and for SSM Health Care System et al. by J. Jerome
Mansmann and Melanie DiPietro. [497 U.S. 261, 265]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Nancy Beth Cruzan was rendered incompetent as a result of severe
injuries sustained during an automobile accident. Copetitioners Lester and Joyce
Cruzan, Nancy's parents and coguardians, sought a court order directing the
withdrawal of their daughter's artificial feeding and hydration equipment after it
became apparent that she had virtually no chance of recovering her cognitive
faculties. The Supreme Court of Missouri held that, because there was no clear
and convincing evidence of Nancy's desire to have life-sustaining treatment
withdrawn under such circumstances, her parents lacked authority to effectuate
such a request. We granted certiorari, 492 U.S. 917 (1989), and now affirm. [497
U.S. 261, 266]
On the night of January 11, 1983, Nancy Cruzan lost control of her car as she
traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and
Cruzan was discovered lying face down in a ditch without detectable respiratory
or cardiac function. Paramedics were able to restore her breathing and heartbeat
at the accident site, and she was transported to a hospital in an unconscious state.
An attending neurosurgeon diagnosed her as having sustained probable cerebral
contusions compounded by significant anoxia (lack of oxygen). The Missouri
trial court in this case found that permanent brain damage generally results after 6
minutes in an anoxic state; it was estimated that Cruzan was deprived of oxygen
from 12 to 14 minutes. She remained in a coma for approximately three weeks,
and then progressed to an unconscious state in which she was able to orally ingest
some nutrition. In order to ease feeding and further the recovery, surgeons
implanted a gastrostomy feeding and hydration tube in Cruzan with the consent
of her then husband. Subsequent rehabilitative efforts proved unavailing. She
now lies in a Missouri state hospital in what is commonly referred to as a
persistent vegetative state: generally, a condition in which a person exhibits
motor reflexes but evinces no indications of significant cognitive function. 1 The
State of Missouri is bearing the cost of her care. [497 U.S. 261, 267]
After it had become apparent that Nancy Cruzan had virtually no chance of
regaining her mental faculties, her parents asked hospital employees to terminate
the artificial nutrition and hydration procedures. All agree that such a [497 U.S.
261, 268] removal would cause her death. The employees refused to honor the
request without court approval. The parents then sought and received
authorization from the state trial court for termination. The court found that a
person in Nancy's condition had a fundamental right under the State and Federal
Constitutions to refuse or direct the withdrawal of "death prolonging procedures."
App. to Pet. for Cert. A99. The court also found that Nancy's "expressed thoughts
at age twenty-five in somewhat serious conversation with a housemate friend
that, if sick or injured, she would not wish to continue her life unless she could
139
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live at least halfway normally suggests that, given her present condition, she
would not wish to continue on with her nutrition and hydration." Id., at A97-A98.
The Supreme Court of Missouri reversed by a divided vote. The court recognized
a right to refuse treatment embodied in the Common law doctrine of informed
consent, but expressed skepticism about the application of that doctrine in the
circumstances of this case. Cruzan v. Harmon, 760 S.W.2d 408, 416-417 (1988)
(en banc). The court also declined to read a broad right of privacy into the State
Constitution which would "support the right of a person to refuse medical
treatment in every circumstance," and expressed doubt as to whether such a right
existed under the United States Constitution. Id., at 417-418. It then decided that
the Missouri Living Will statute, Mo.Rev.Stat. 459.010 et seq. (1986), embodied
a state policy strongly favoring the preservation of life. 760 S.W.2d, at 419-420.
The court found that Cruzan's statements to her roommate regarding her desire to
live or die under certain conditions were "unreliable for the purpose of
determining her intent," id., at 424, "and thus insufficient to support the
coguardians['] claim to exercise substituted judgment on Nancy's behalf." Id., at
426. It rejected the argument that Cruzan's parents were entitled to order the
termination of her medical treatment, [497 U.S. 261, 269] concluding that "no
person can assume that choice for an incompetent in the absence of the
formalities required under Missouri's Living Will statutes or the clear and
convincing, inherently reliable evidence absent here." Id., at 425. The court also
expressed its view that "[b]road policy questions bearing on life and death are
more properly addressed by representative assemblies" than judicial bodies. Id.,
at 426.
We granted certiorari to consider the question of whether Cruzan has a right
under the United States Constitution which would require the hospital to
withdraw life-sustaining treatment from her under these circumstances.
At Common law, even the touching of one person by another without consent and
without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, &
D. Owen, Prosser and Keeton on Law of Torts 9, pp. 39-42 (5th ed. 1984). Before
the turn of the century, this Court observed that "[n]o right is held more sacred, or
is more carefully guarded by the Common law, than the right of every individual
to the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law."
Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891). This notion of bodily
integrity has been embodied in the requirement that informed consent is generally
required for medical treatment. Justice Cardozo, while on the Court of Appeals of
New York, aptly described this doctrine: "Every human being of adult years and
sound mind has a right to determine what shall be done with his own body, and a
surgeon who performs an operation without his patient's consent commits an
assault, for which he is liable in damages." Schloendorff v. Society of New York
Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). The informed consent
doctrine has become firmly entrenched in American tort law. See Dobbs, Keeton,
& Owen, supra, 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical
Guide 1-98 (2d ed. 1990). [497 U.S. 261, 270]
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Substantial Rights – The Right to Die
The logical corollary of the doctrine of informed consent is that the patient
generally possesses the right not to consent, that is, to refuse treatment. Until
about 15 years ago and the seminal decision in In re Quinlan, 70 N.J. 10, 355
A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976), the
number of right-to-refuse-treatment decisions were relatively few. 2 Most of the
earlier cases involved patients who refused medical treatment forbidden by their
religious beliefs, thus implicating First Amendment rights as well as Common
law rights of self-determination. 3 More recently, however, with the advance of
medical technology capable of sustaining life well past the point where natural
forces would have brought certain death in earlier times, cases involving the right
to refuse life-sustaining treatment have burgeoned. See 760 S.W.2d at 412, n. 4
(collecting 54 reported decisions from 1976 through 1988).
In the Quinlan case, young Karen Quinlan suffered severe brain damage as the
result of anoxia, and entered a persistent vegetative state. Karen's father sought
judicial approval to disconnect his daughter's respirator. The New Jersey
Supreme Court granted the relief, holding that Karen had a right of privacy
grounded in the Federal Constitution to terminate treatment. In re Quinlan, 70
N.J. at 38-42, 355 A.2d at 662-664. Recognizing that this right was not absolute,
however, the court balanced it against asserted state interests. Noting that the
State's interest "weakens and the individual's right to privacy grows as the degree
of bodily invasion increases and the prognosis dims," the court concluded that the
state interests had to give way in that case. Id., at [497 U.S. 261, 271] 41, 355
A.2d at 664. The court also concluded that the "only practical way" to prevent the
loss of Karen's privacy right due to her incompetence was to allow her guardian
and family to decide "whether she would exercise it in these circumstances." Ibid.
After Quinlan, however, most courts have based a right to refuse treatment either
solely on the Common law right to informed consent or on both the Common law
right and a constitutional privacy right. See L. Tribe, American Constitutional
Law 15-11, p. 1365 (2d ed. 1988). In Superintendent of Belchertown State School
v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977), the Supreme Judicial Court
of Massachusetts relied on both the right of privacy and the right of informed
consent to permit the withholding of chemotherapy from a profoundly-retarded
67-year-old man suffering from leukemia. Id., at 737-738, 370 N.E.2d at 424.
Reasoning that an incompetent person retains the same rights as a competent
individual "because the value of human dignity extends to both," the court
adopted a "substituted judgment" standard whereby courts were to determine
what an incompetent individual's decision would have been under the
circumstances. Id., at 745, 752-753, 757-758, 370 N.E.2d at 427, 431, 434.
Distilling certain state interests from prior case law - the preservation of life, the
protection of the interests of innocent third parties, the prevention of suicide, and
the maintenance of the ethical integrity of the medical profession - the court
recognized the first interest as paramount and noted it was greatest when an
affliction was curable, "as opposed to the State interest where, as here, the issue is
not whether, but when, for how long, and at what cost to the individual [a] life
may be briefly extended." Id., at 742, 370 N.E.2d at 426.
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In In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied,
454 U.S. 858 (1981), the New York Court of Appeals declined to base a right to
refuse treatment on a constitutional privacy right. Instead, it found such a right
"adequately [497 U.S. 261, 272] supported" by the informed consent doctrine.
Id., at 376-377, 420 N.E.2d at 70. In In re Eichner (decided with In re Storar,
supra), an 83-year-old man who had suffered brain damage from anoxia entered a
vegetative state and was thus incompetent to consent to the removal of his
respirator. The court, however, found it unnecessary to reach the question of
whether his rights could be exercised by others, since it found the evidence clear
and convincing from statements made by the patient when competent that he "did
not want to be maintained in a vegetative coma by use of a respirator." Id., at 380,
420 N.E.2d at 72. In the companion Storar case, a 52-year-old man suffering
from bladder cancer had been profoundly retarded during most of his life.
Implicitly rejecting the approach taken in Saikewicz, supra, the court reasoned
that, due to such life-long incompetency, "it is unrealistic to attempt to determine
whether he would want to continue potentially life-prolonging treatment if he
were competent." 52 N.Y.2d at 380, 420 N.E.2d at 72. As the evidence showed
that the patient's required blood transfusions did not involve excessive pain and,
without them, his mental and physical abilities would deteriorate, the court
concluded that it should not "allow an incompetent patient to bleed to death
because someone, even someone as close as a parent or sibling, feels that this is
best for one with an incurable disease." Id., at 382, 420 N.E.2d, at 73.
Many of the later cases build on the principles established in Quinlan, Saikewicz
and Storar/Eichner. For instance, in In re Conroy, 98 N.J. 321, 486 A.2d 1209
(1985), the same court that decided Quinlan considered whether a nasogastric
feeding tube could be removed from an 84-year-old incompetent nursing-home
resident suffering irreversible mental and physical ailments. While recognizing
that a federal right of privacy might apply in the case, the court, contrary to its
approach in Quinlan, decided to base its decision on the Common law right to
self-determination and informed consent. [497 U.S. 261, 273] 98 N.J. at 348,
486 A.2d at 1223. "On balance, the right to self-determination ordinarily
outweighs any countervailing state interests, and competent persons generally are
permitted to refuse medical treatment, even at the risk of death. Most of the cases
that have held otherwise, unless they involved the interest in protecting innocent
third parties, have concerned the patient's competency to make a rational and
considered choice." Id., at 353-354, 486 A.2d at 1225.
Reasoning that the right of self-determination should not be lost merely because
an individual is unable to sense a violation of it, the court held that incompetent
individuals retain a right to refuse treatment. It also held that such a right could be
exercised by a surrogate decisionmaker using a "subjective" standard when there
was clear evidence that the incompetent person would have exercised it. Where
such evidence was lacking, the court held that an individual's right could still be
invoked in certain circumstances under objective "best interest" standards. Id., at
361-368, 486 A.2d at 1229-1233. Thus, if some trustworthy evidence existed that
the individual would have wanted to terminate treatment, but not enough to
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clearly establish a person's wishes for purposes of the subjective standard, and the
burden of a prolonged life from the experience of pain and suffering markedly
outweighed its satisfactions, treatment could be terminated under a "limitedobjective" standard. Where no trustworthy evidence existed, and a person's
suffering would make the administration of life-sustaining treatment inhumane, a
"pure-objective" standard could be used to terminate treatment. If none of these
conditions obtained, the court held it was best to err in favor of preserving life.
Id., at 364-368, 486 A.2d at 1231-1233.
The court also rejected certain categorical distinctions that had been drawn in
prior refusal-of-treatment cases as lacking substance for decision purposes: the
distinction between actively hastening death by terminating treatment and
passively [497 U.S. 261, 274] allowing a person to die of a disease; between
treating individuals as an initial matter versus withdrawing treatment afterwards;
between ordinary versus extraordinary treatment; and between treatment by
artificial feeding versus other forms of life-sustaining medical procedures. Id., at
369-374, 486 A.2d at 1233-1237. As to the last item, the court acknowledged the
"emotional significance" of food, but noted that feeding by implanted tubes is a
"medical procedur[e] with inherent risks and possible side effects, instituted by
skilled healthcare providers to compensate for impaired physical functioning"
which analytically was equivalent to artificial breathing using a respirator. Id., at
373, 486 A.2d at 1236. 4
In contrast to Conroy, the Court of Appeals of New York recently refused to
accept less than the clearly expressed wishes of a patient before permitting the
exercise of her right to refuse treatment by a surrogate decisionmaker. In re
Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 534
N.Y.S.2d 886, 531 N.E.2d 607 (1988) (O'Connor). There, the court, over the
objection of the patient's family members, granted an order to insert a feeding
tube into a 77-year-old [497 U.S. 261, 275] woman rendered incompetent as a
result of several strokes. While continuing to recognize a Common law right to
refuse treatment, the court rejected the substituted judgment approach for
asserting it "because it is inconsistent with our fundamental commitment to the
notion that no person or court should substitute its judgment as to what would be
an acceptable quality of life for another. Consequently, we adhere to the view
that, despite its pitfalls and inevitable uncertainties, the inquiry must always be
narrowed to the patient's expressed intent, with every effort made to minimize the
opportunity for error." Id., at 530, 531 N.E.2d, at 613 (citation omitted). The
court held that the record lacked the requisite clear and convincing evidence of
the patient's expressed intent to withhold life-sustaining treatment. Id., at 531534, 531 N.E.2d, at 613-615.
Other courts have found state statutory law relevant to the resolution of these
issues. In Conservatorship of Drabick, 200 Cal.App. 3d 185, 245 Cal.Rptr. 840,
cert. denied, 488 U.S. 958 (1988), the California Court of Appeal authorized the
removal of a nasogastric feeding tube from a 44-year-old man who was in a
persistent vegetative state as a result of an auto accident. Noting that the right to
refuse treatment was grounded in both the Common law and a constitutional right
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of privacy, the court held that a state probate statute authorized the patient's
conservator to order the withdrawal of life-sustaining treatment when such a
decision was made in good faith based on medical advice and the conservatee's
best interests. While acknowledging that "to claim that [a patient's] `right to
choose' survives incompetence is a legal fiction at best," the court reasoned that
the respect society accords to persons as individuals is not lost upon
incompetence, and is best preserved by allowing others "to make a decision that
reflects [a patient's] interests more closely than would a purely technological
decision to do whatever is possible." 5 [497 U.S. 261, 276] Id., at 208, 245
Cal.Rptr., at 854-855. See also In re Conservatorship of Torres, 357 N.W.2d 332
(Minn. 1984) (Minnesota court had constitutional and statutory authority to
authorize a conservator to order the removal of an incompetent individual's
respirator since in patient's best interests).
In In re Estate of Longeway, 133 Ill.2d 33, 549 N.E.2d 292 (1989), the Supreme
Court of Illinois considered whether a 76-year-old woman rendered incompetent
from a series of strokes had a right to the discontinuance of artificial nutrition and
hydration. Noting that the boundaries of a federal right of privacy were uncertain,
the court found a right to refuse treatment in the doctrine of informed consent.
Id., at 43-45, 549 N.E.2d at 296-297. The court further held that the State Probate
Act impliedly authorized a guardian to exercise a ward's right to refuse artificial
sustenance in the event that the ward was terminally ill and irreversibly comatose.
Id., at 45-47, 549 N.E.2d at 298. Declining to adopt a best interests standard for
deciding when it would be appropriate to exercise a ward's right because it "lets
another make a determination of a patient's quality of life," the court opted
instead for a substituted judgment standard. Id., at 49, 549 N.E.2d at 299. Finding
the "expressed intent" standard utilized in O'Connor, supra, too rigid, the court
noted that other clear and convincing evidence of the patient's intent could be
considered. 133 Ill.2d, at 50-51, 549 N.E.2d, at 300. The court also adopted the
"consensus opinion [that] treats artificial nutrition and hydration as medical
treatment." Id., at 42, 549 N.E.2d at 296. Cf. McConnell v. Beverly EnterprisesConnecticut, Inc., 209 Conn. 692, 705, [497 U.S. 261, 277] 553 A.2d 596, 603
(1989) (right to withdraw artificial nutrition and hydration found in the
Connecticut Removal of Life Support Systems Act, which "provid[es] functional
guidelines for the exercise of the Common law and constitutional rights of selfdetermination"; attending physician authorized to remove treatment after finding
that patient is in a terminal condition, obtaining consent of family, and
considering expressed wishes of patient). 6
As these cases demonstrate, the Common law doctrine of informed consent is
viewed as generally encompassing the right of a competent individual to refuse
medical treatment. Beyond that, these decisions demonstrate both similarity and
diversity in their approach to decision of what all agree is a perplexing question
with unusually strong moral and ethical overtones. State courts have available to
them for decision a number of sources - state constitutions, statutes, and Common
law - which are not available to us. In this Court, the question is simply and
starkly whether the United States Constitution prohibits Missouri from choosing
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the rule of decision which it did. This is the first case in which we have been
squarely presented with the issue of whether the United States Constitution grants
what is in common parlance referred to as a "right to die." We follow the
judicious counsel of our decision in Twin City Bank v. Nebeker, 167 U.S. 196,
202 (1897), where we said that, in deciding "a question [497 U.S. 261, 278] of
such magnitude and importance . . . it is the [better] part of wisdom not to
attempt, by any general statement, to cover every possible phase of the subject."
The Fourteenth Amendment provides that no State shall "deprive any person of
life, liberty, or property, without due process of law." The principle that a
competent person has a constitutionally protected liberty interest in refusing
unwanted medical treatment may be inferred from our prior decisions. In
Jacobson v. Massachusetts, 197 U.S. 11, 24 -30 (1905), for instance, the Court
balanced an individual's liberty interest in declining an unwanted smallpox
vaccine against the State's interest in preventing disease. Decisions prior to the
incorporation of the Fourth Amendment into the Fourteenth Amendment
analyzed searches and seizures involving the body under the Due Process Clause
and were thought to implicate substantial liberty interests. See, e.g., Breithaupt v.
Abram, 352 U.S. 432, 439 (1957) ("As against the right of an individual that his
person be held inviolable . . . must be set the interests of society. . . .")
Just this Term, in the course of holding that a State's procedures for administering
antipsychotic medication to prisoners were sufficient to satisfy due process
concerns, we recognized that prisoners possess "a significant liberty interest in
avoiding the unwanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment." Washington v. Harper, 494 U.S.
210, 221 -222 (1990); see also id., at 229 ("The forcible injection of medication
into a nonconsenting person's body represents a substantial interference with that
person's liberty"). Still other cases support the recognition of a general liberty
interest in refusing medical treatment. Vitek v. Jones, 445 U.S. 480, 494 (1980)
(transfer to mental hospital coupled with mandatory behavior modification
treatment implicated liberty interests); Parham v. J.R., 442 U.S. 584, 600 (1979)
("a child, in common with adults, has a substantial liberty [497 U.S. 261, 279]
interest in not being confined unnecessarily for medical treatment").
But determining that a person has a "liberty interest" under the Due Process
Clause does not end the inquiry; 7 "whether respondent's constitutional rights
have been violated must be determined by balancing his liberty interests against
the relevant state interests." Youngberg v. Romeo, 457 U.S. 307, 321 (1982). See
also Mills v. Rogers, 457 U.S. 291, 299 (1982).
Petitioners insist that, under the general holdings of our cases, the forced
administration of life-sustaining medical treatment, and even of artificiallydelivered food and water essential to life, would implicate a competent person's
liberty interest. Although we think the logic of the cases discussed above would
embrace such a liberty interest, the dramatic consequences involved in refusal of
such treatment would inform the inquiry as to whether the deprivation of that
interest is constitutionally permissible. But for purposes of this case, we assume
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that the United States Constitution would grant a competent person a
constitutionally protected right to refuse lifesaving hydration and nutrition.
Petitioners go on to assert that an incompetent person should possess the same
right in this respect as is possessed by a competent person. They rely primarily on
our decisions in Parham v. J.R., supra, and Youngberg v. Romeo, supra. In
Parham, we held that a mentally disturbed minor child had a liberty interest in
"not being confined unnecessarily for medical treatment," 442 U.S., at 600 , but
we certainly did not intimate that such a minor child, after commitment, would
have a liberty interest in refusing treatment. In Youngberg, we held that a
seriously retarded adult had a liberty [497 U.S. 261, 280] interest in safety and
freedom from bodily restraint, 457 U.S., at 320 . Youngberg, however, did not
deal with decisions to administer or withhold medical treatment.
The difficulty with petitioners' claim is that, in a sense, it begs the question: an
incompetent person is not able to make an informed and voluntary choice to
exercise a hypothetical right to refuse treatment or any other right. Such a "right"
must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has
in effect recognized that, under certain circumstances, a surrogate may act for the
patient in electing to have hydration and nutrition withdrawn in such a way as to
cause death, but it has established a procedural safeguard to assure that the action
of the surrogate conforms as best it may to the wishes expressed by the patient
while competent. Missouri requires that evidence of the incompetent's wishes as
to the withdrawal of treatment be proved by clear and convincing evidence. The
question, then, is whether the United States Constitution forbids the establishment
of this procedural requirement by the State. We hold that it does not.
Whether or not Missouri's clear and convincing evidence requirement comports
with the United States Constitution depends in part on what interests the State
may properly seek to protect in this situation. Missouri relies on its interest in the
protection and preservation of human life, and there can be no gainsaying this
interest. As a general matter, the States - indeed, all civilized nations demonstrate their commitment to life by treating homicide as serious crime.
Moreover, the majority of States in this country have laws imposing criminal
penalties on one who assists another to commit suicide. 8 We do not think a State
is required to remain neutral in the face of an informed and voluntary decision by
a physically able adult to starve to death. [497 U.S. 261, 281]
But in the context presented here, a State has more particular interests at stake.
The choice between life and death is a deeply personal decision of obvious and
overwhelming finality. We believe Missouri may legitimately seek to safeguard
the personal element of this choice through the imposition of heightened
evidentiary requirements. It cannot be disputed that the Due Process Clause
protects an interest in life as well as an interest in refusing life-sustaining medical
treatment. Not all incompetent patients will have loved ones available to serve as
surrogate decisionmakers. And even where family members are present, "[t]here
will, of course, be some unfortunate situations in which family members will not
act to protect a patient." In re Jobes, 108 N.J. 394, 419, 529 A.2d 434, 477
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(1987). A State is entitled to guard against potential abuses in such situations.
Similarly, a State is entitled to consider that a judicial proceeding to make a
determination regarding an incompetent's wishes may very well not be an
adversarial one, with the added guarantee of accurate factfinding that the
adversary process brings with it. 9 See Ohio v. Akron Center for Reproductive
[497 U.S. 261, 282] Health, post, at 515-516 (1990). Finally, we think a State
may properly decline to make judgments about the "quality" of life that a
particular individual may enjoy, and simply assert an unqualified interest in the
preservation of human life to be weighed against the constitutionally protected
interests of the individual.
In our view, Missouri has permissibly sought to advance these interests through
the adoption of a "clear and convincing" standard of proof to govern such
proceedings. "The function of a standard of proof, as that concept is embodied in
the Due Process Clause and in the realm of factfinding, is to `instruct the
factfinder concerning the degree of confidence our society thinks he should have
in the correctness of factual conclusions for a particular type of adjudication.'"
Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S.
358, 370 (1970) (Harlan, J., concurring)). "This Court has mandated an
intermediate standard of proof - `clear and convincing evidence' - when the
individual interests at stake in a state proceeding are both `particularly important'
and `more substantial than mere loss of money.'" Santosky v. Kramer, 455 U.S.
745, 756 (1982) (quoting Addington, supra, at 424). Thus, such a standard has
been required in deportation proceedings, Woodby v. INS, 385 U.S. 276 (1966),
in denaturalization proceedings, Schneiderman v. United States, 320 U.S. 118
(1943), in civil commitment proceedings, Addington, supra, and in proceedings
for the termination of parental rights. Santosky, supra. 10 Further, [497 U.S. 261,
283] this level of proof, "or an even higher one, has traditionally been imposed
in cases involving allegations of civil fraud, and in a variety of other kinds of
civil cases involving such issues as . . . lost wills, oral contracts to make bequests,
and the like." Woodby, supra, at 285, n. 18.
We think it self-evident that the interests at stake in the instant proceedings are
more substantial, both on an individual and societal level, than those involved in
a run-of-the-mine civil dispute. But not only does the standard of proof reflect the
importance of a particular adjudication, it also serves as "a societal judgment
about how the risk of error should be distributed between the litigants." Santosky,
supra, at 755; Addington, supra, at 423. The more stringent the burden of proof a
party must bear, the more that party bears the risk of an erroneous decision. We
believe that Missouri may permissibly place an increased risk of an erroneous
decision on those seeking to terminate an incompetent individual's life-sustaining
treatment. An erroneous decision not to terminate results in a maintenance of the
status quo; the possibility of subsequent developments such as advancements in
medical science, the discovery of new evidence regarding the patient's intent,
changes in the law, or simply the unexpected death of the patient despite the
administration of life-sustaining treatment, at least create the potential that a
wrong decision will eventually be corrected or its impact mitigated. An erroneous
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decision to withdraw life-sustaining treatment, however, is not susceptible of
correction. In Santosky, one of the factors which led the Court to require proof by
clear and convincing evidence in a proceeding to terminate parental rights was
that a decision in such a case was final and irrevocable. Santosky, supra, at 759.
The same must surely be said of the decision to discontinue hydration and
nutrition of a patient such as Nancy Cruzan, which all agree will result in her
death. [497 U.S. 261, 284]
It is also worth noting that most, if not all, States simply forbid oral testimony
entirely in determining the wishes of parties in transactions which, while
important, simply do not have the consequences that a decision to terminate a
person's life does. At Common law and by statute in most States, the parol
evidence rule prevents the variations of the terms of a written contract by oral
testimony. The statute of frauds makes unenforceable oral contracts to leave
property by will, and statutes regulating the making of wills universally require
that those instruments be in writing. See 2 A. Corbin, Contracts 398, pp. 360-361
(1950); 2 W. Page, Law of Wills 19.3-19.5, pp. 61-71 (1960). There is no doubt
that statutes requiring wills to be in writing, and statutes of frauds which require
that a contract to make a will be in writing, on occasion frustrate the effectuation
of the intent of a particular decedent, just as Missouri's requirement of proof in
this case may have frustrated the effectuation of the not-fully-expressed desires of
Nancy Cruzan. But the Constitution does not require general rules to work
faultlessly; no general rule can.
In sum, we conclude that a State may apply a clear and convincing evidence
standard in proceedings where a guardian seeks to discontinue nutrition and
hydration of a person diagnosed to be in a persistent vegetative state. We note
that many courts which have adopted some sort of substituted judgment
procedure in situations like this, whether they limit consideration of evidence to
the prior expressed wishes of the incompetent individual, or whether they allow
more general proof of what the individual's decision would have been, require a
clear and convincing standard of proof for such evidence. See, e.g., Longeway,
133 Ill.2d at 50-51, 549 N.E.2d at 300; McConnell, 209 Conn., at 707-710, 553
A.2d at 604-605; O'Connor, 72 N.Y.2d at 529-530, 531 N.E.2d at 613; In re
Gardner, 534 A.2d 947, 952-953 (Me. 1987); In re Jobes, 108 N.J. at 412-413,
529 A.2d [497 U.S. 261, 285] at 443; Leach v. Akron General Medical Center,
68 Ohio Misc. 1, 11, 426 N.E.2d 809, 815 (1980).
The Supreme Court of Missouri held that, in this case, the testimony adduced at
trial did not amount to clear and convincing proof of the patient's desire to have
hydration and nutrition withdrawn. In so doing, it reversed a decision of the
Missouri trial court, which had found that the evidence "suggest[ed]" Nancy
Cruzan would not have desired to continue such measures, App. to Pet. for Cert.
A98, but which had not adopted the standard of "clear and convincing evidence"
enunciated by the Supreme Court. The testimony adduced at trial consisted
primarily of Nancy Cruzan's statements, made to a housemate about a year before
her accident, that she would not want to live should she face life as a "vegetable,"
and other observations to the same effect. The observations did not deal in terms
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with withdrawal of medical treatment or of hydration and nutrition. We cannot
say that the Supreme Court of Missouri committed constitutional error in
reaching the conclusion that it did. 11
Petitioners alternatively contend that Missouri must accept the "substituted
judgment" of close family members even in the absence of substantial proof that
their views reflect [497 U.S. 261, 286] the views of the patient. They rely
primarily upon our decisions in Michael H. v. Gerald D., 491 U.S. 110 (1989),
and Parham v. J.R., 442 U.S. 584 (1979). But we do not think these cases support
their claim. In Michael H., we upheld the constitutionality of California's favored
treatment of traditional family relationships; such a holding may not be turned
around into a constitutional requirement that a State must recognize the primacy
of those relationships in a situation like this. And in Parham, where the patient
was a minor, we also upheld the constitutionality of a state scheme in which
parents made certain decisions for mentally ill minors. Here again, petitioners
would seek to turn a decision which allowed a State to rely on family
decisionmaking into a constitutional requirement that the State recognize such
decisionmaking. But constitutional law does not work that way.
No doubt is engendered by anything in this record but that Nancy Cruzan's
mother and father are loving and caring parents. If the State were required by the
United States Constitution to repose a right of "substituted judgment" with
anyone, the Cruzans would surely qualify. But we do not think the Due Process
Clause requires the State to repose judgment on these matters with anyone but the
patient herself. Close family members may have a strong feeling - a feeling not at
all ignoble or unworthy, but not entirely disinterested, either - that they do not
wish to witness the continuation of the life of a loved one which they regard as
hopeless, meaningless, and even degrading. But there is no automatic assurance
that the view of close family members will necessarily be the same as the
patient's would have been had she been confronted with the prospect of her
situation while competent. All of the reasons previously discussed for allowing
Missouri to require clear and convincing evidence of the patient's wishes lead us
to conclude that the State may [497 U.S. 261, 287] choose to defer only to those
wishes, rather than confide the decision to close family members. 12
The judgment of the Supreme Court of Missouri is
Affirmed.
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150
Part III – The Law
In 1931, the Czech-born mathematician Kurt Gödel demonstrated that
within any given branch of mathematics, there would always be some
propositions that couldn't be proven either true or false using the rules
and axioms of that mathematical branch itself. You might be able to
prove every conceivable statement about numbers within a system by
going outside the system in order to come up with new rules and axioms,
but by doing so yo will only create a larger system with its own
unprovable statements. The implication is that all logical systems of any
complexity are, by definition, incomplete; each of them contains, at any
given time, more true statements than it can possibly prove according to
its own defining set of rules. Gödel's theorem has been used to argue that
a computer can never be as smart as a human being because the extent of
its knowledge is limited by a fixed set of axioms, whereas people can
discover unexpected truths.21
Having this in mind, law is “an attempt to delineate the complex
boundary between right and wrong using only rectangular shapes”22, a
system limited by its own truth, whereas people can discover unexpected
truths…
We will see that in a formal classification, law has various sources,
should it be the Common law, statutes or even, in some way, case law.
However, in the United States law also identifies itself with a
philosophical concept: self-governement.
21
22
The Kurt Goedel Society, http://www.logic.at/kgs/home.html.
John McIntosh, http://urticator.net, <what is law?>.
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152
Lecture # 9 – Self-government, Law and
Democracy
For the American people, Federalism is synonym of liberty. Each
population governs itself in its own proper community. If there must be a
superior authority, it has only to intervene in a supplementary, secondary,
accessory fashion. The result is that we have local governments with its
ordinances and resolutions, state governments with their statutes and their
Common law, and a federal government with its statutes and its case law.
Thus, in the American system law comes principally from the bottom and
not from the top. A good example is furnished by Administrative law for
instance.
At the end of the 19th century Congress started to delegate some powers to
special ad hoc commissions, and this movement since then never stopped.
Roughly there have been three waves. The first commission to be created
had been the Interstate Commerce Commission in 1887, in charge of
regulating train tariffs. The second wave started with the New Deal, and
the creation of, among others, the Securities Exchange Commission (SEC)
and the Social Security Agency (SSA). The last wave covered more or less
the period 1960-1970 in regard to environment and health: among others,
the creation of the Environmental Protection Agency, the Consumer
Product Safety Commission, etc..
In 1946, the Administrative Procedure Act has been adopted in order to
preserve the democratic State against the excesses of an administrative
State. In order words, how to conjugate an undemocratic rule-making with
self-government?
Section 553 (c) of the U.S.C. aims to give the answer in the following
prescription:
(b) General notice of proposed rule making shall be published in
the Federal Register, unless persons subject thereto are named and
either personally served or otherwise have actual notice thereof in
accordance with law. The notice shall include:
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Lectures on the US Legal System
(1) a statement of the time, place, and nature of public rule
making proceedings;
(2) reference to the legal authority under which the rule is
proposed; and
(3) either the terms or substance of the proposed rule or a
description of the subjects and issues involved. Except when
notice or hearing is required by statute, this subsection does not
apply:
(A) to interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons
therefore in the rules issued) that notice and public
procedure thereon are impracticable, unnecessary, or
contrary to the public interest.
(c) After notice required by this section, the agency shall give
interested persons an opportunity to participate in the rule
making through submission of written data, views, or
arguments with or without opportunity for oral presentation.
After consideration of the relevant matter presented, the agency
shall incorporate in the rules adopted a concise general statement of
their basis and purpose. When rules are required by statute to be
made on the record after opportunity for an agency hearing, sections
556 and 557 of this title apply instead of this subsection.
Consequently there must be a fully reasoned rule. If not, the decision is
quashed by the courts23.
23
US v. Nova Scotia Food Products Corp (1977).
See also : The OALJ Law Library (http://www.oalj.dol.gov/libapa.htm)
and
the
Manual
for
Administrative
Law
Judges
(http://www.oalj.dol.gov/public/apa/refrnc/aljmantc.htm).
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International law v. Municipal law
Lecture # 10 – International law v. Municipal law
Without entering into an International Law lecture, I have shortly to
explain the interaction between International Law and Municipal Law.
There are two views. The first one postulates that national law underlies
the international order with the consequence that treaties prevail over the
national constitution. The second view postulates that the municipal
constitution is the primary key of the existence of a country and that
consequently nothing prevails over it. Article 6 of the US Constitution
sets out:
“This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any state to the Contrary notwithstanding”.
The formulation of the text does not permit to conclude that there is a real
choice for one or the other above-mentioned systems. However, the ruling
of the Supreme Court in Whitney v. Robertson24 leads us to the conclusion
that the United States opted for a dualistic approach.
However, one thing is to proclaim the superiority of the Constitution;
another thing is to consider that even statutes may prevail over
international law, for this means that what one hand grants, the other
might retrieve. Consequently, each time that the United States accepts an
international binding obligation, they have just to vote a new law to
unbind themselves from it, nonetheless the principle of pacta sunt
servanda. John Jay underlined in The Federalist that treaties were not
repealable at pleasure as the consent of both parties was essential to the
formation of a treaty at first, and so must it be ever afterwards to alter or
cancel it25. However, two main reasons were usually given for introducing
the so-called later-in-time rule based on the lex posterior derogat priori
principle. As Article 6 set no hierarchy, the tenants of the first reason
24
25
124 US 190 (1888).
Cited by Vagts, The United States and its Treaties:Oberservance and Breach,
AJIL, 2001.313, 314.
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conclude that the latest sovereign act should prevail. Proponents of the
second reason saw no justification for preferring an act in which only two
parties – the President and the Senate – cooperate over another one in
which the House of Representatives also intervened. It is this last reason
that lead Justice Benjamin Robbins Curtis to defend the later-in-time rule:
“By a treaty with a foreign nation, the United States may rightfully stipulate that
the Congress will or will not exercise its legislative power in some particular
manner, on some particular subject. Such promises when made, should be
voluntary kept, with the most scrupulous good faith. But that a treaty with a
foreign nation can deprive the Congress of any part of the legislative power
conferred by the people, so that it no longer can legislate as it was empowered by
the Constitution to do, I more than doubt”26.
As a body, the Supreme Court for the first time adopted the later-in-time
rule in The Cherokee Tobacco27 and in the Head Money Cases28. Through
the adoption of the lex posterior derogat priori principle, any new federal
statute can override in the national legal order a treaty. As illustrated in
the Whitney v. Robertson case, “by the Constitution, a treaty is placed on
the same footing, and made of like obligation, with an act of legislation.
Both are declared by that instrument to be the supreme law of the land,
and no superior efficacy is given to either over the other. When the two
relate to the same subject, the courts will always endeavor to construe
them as to give effect to both, if that can be done without violating the
language of either; but, if the two are inconsistent, the one last in date will
control the other”29. This does not mean, however, that this can override
the international obligations of the United States30.
26
Cited by Vagts, op.cit., 315.
78 US 616 (1870).
28
Edye v. Robertson, 112 US 580 (1884).
29
Furthermore, the Court underlines that “if the country with which the treaty is
made is dissatisfied with the action of the legislative department, it may
present its complaint to the executive head of the governement, and take such
other measures as it may deem essential for the protection of its interests. The
courts can aford no redress. Whether the complaining nation has just cause of
complaint, or our country was justified in its legislation, are not matters for
judicial cognizance”.
30
Cf Restatement (Third) §115. For a practical application, see for exemple: ICJ,
LaGrand, Germany v. U.S., 27/6/2001; Avena, Mexico v. U.S., 31/3/2004.
27
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International law v. Municipal law
Lecture # 11 – Federal law v. State law
From a constitutional point of view, state law is the main source of the
legal system. However, from a practical point of view, through the impact
of the Supremacy clause of Article VI, federal law takes more and more
over state law.
According to the 10th amendment of the Constitution, the powers which
are not granted to the federal government, or are prohibited to the states,
are expressly reserved to the states or the people. Thus, every state is
responsible for its own system of education, health, welfare,
transportation and administration of justice. In the same way, the
regulation of marriages and divorces, contract, wills and property are
almost exclusively of the responsibility of the states. However, as
mentioned, there are also negative constitutional limitations to the state
legislative power. For example, Article 1, section 1031 prohibits states
from passing ex post facto laws, which aim to punish an act that was not
illegal at the time it was committed. So it is as well for bills of attainder
that aim at punishing a particular individual. However, the original
constitutional text imposed no real obligations on States to protect the
rights of their citizens. In Barrow v. Baltimore (1833), the Supreme Court
ruled that the Bill of rights only concerned the federal government and not
state governments. To protect the emancipation of the Afro-Americans,
after the end of the Secession War, a XIVth amendment had been adopted
in 1868 that stipulates that “no State shall deprive any person of life,
liberty, or property, without due process of law nor deny to any person
31
Section. 10: “No State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in Payment of Debts; pass any
Bill of Attainder, ex post facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility. No State shall, without the Consent
of the Congress, lay any Imposts or Duties on Imports or Exports, except what
may be absolutely necessary for executing it’s inspection Laws: and 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; and all such Laws
shall be subject to the Revision and Control of the Congress. No State shall,
without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or
Ships of War in time of Peace, enter into any Agreement or Compact with
another State, or with a foreign Power, or engage in War, unless actually
invaded, or in such imminent Danger as will not admit of delay”.
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Lectures on the US Legal System
equal protection of the laws within its jurisdiction”. This amendment
changed in a fundamental way the original system, placing States in some
way under the tutelage of the federal courts.
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International law v. Municipal law
Cases and Materials
ICJ: Avena Case (2004) 32
31 March 2004
CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS
(MEXICO v. UNITED STATES OF AMERICA)
Facts of the case • Article 36 of the Vienna Convention on Consular
Relations of
24 April 1963.
**
Mexico’s objection to the United States objections to jurisdiction and
admissibility • United States objections not presented as preliminary
objections —Article 79 of Rules of Court not pertinent in present case.
**
Jurisdiction of the Court.
First United States objection to jurisdiction • Contention that Mexico’s
submissions invite the Court to rule on the operation of the United States criminal
justice system - Jurisdiction of Court to determine the nature and extent of
obligations arising under Vienna Convention - Enquiry into the conduct of
criminal proceedings in United States courts a matter belonging to the
merits.
Second United States objection to jurisdiction - Contention that the first
submission of Mexico’s Memorial is excluded from the Court’s jurisdiction Mexico defending an interpretation of the Vienna Convention whereby not only
the absence of consular notification but also the arrest, detention, trial and
conviction of its nationals were unlawful, failing such notification - Interpretation
of Vienna Convention a matter within the Court’s jurisdiction.
Third United States objection to jurisdiction • Contention that Mexico’s
submissions on remedies go beyond the Court’s jurisdiction • Jurisdiction of
Court to consider the question of remedies - Question whether or how far the
Court may order the requested remedies a matter belonging to the merits.
32
Graham, Los extranjeros condenados a muerte en los Estados Unidos de
América y sus derechos consulares, Lex Artis, Udem, 2006.
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Lectures on the US Legal System
Fourth United States objection to jurisdiction - Contention that the Court
lacks jurisdiction to determine whether or not consular notification is a human
right - Question of interpretation of Vienna Convention.
**
Admissibility of Mexico’s claims.
First United States objection to admissibility • Contention that Mexico’s
submissions on remedies seek to have the Court function as a court of criminal
appeal • Question belonging to the merits.
Second United States objection to admissibility • Contention that
Mexico’s claims to exercise its right of diplomatic protection are inadmissible on
grounds that local remedies have not been exhausted • Interdependence in the
present case of rights of the State and of individual rights • Mexico requesting the
Court to rule on the violation of rights which it suffered both directly and through
the violation of individual rights of its nationals • Duty to exhaust local remedies
does not apply to such a request.
Third United States objection to admissibility • Contention that certain
Mexican nationals also have United States nationality • Question belonging to the
merits.
Fourth United States objection to admissibility • Contention that Mexico
had actual knowledge of a breach but failed to bring such breach to the attention
of the United States or did so only after considerable delay • No contention in the
present case of any prejudice caused by such delay • No implied waiver by
Mexico of its rights.
Fifth United States objection to admissibility • Contention that Mexico
invokes standards that it does not follow in its own practice • Nature of Vienna
Convention precludes such an argument.
*
Article 36, paragraph 1 • Mexican nationality of 52 individuals
concerned • United States has not proved its contention that some were also
United States nationals.
Article 36, paragraph 1 (b) • Consular information • Duty to provide
consular information as soon as arresting authorities realize that arrested person is
a foreign national, or have grounds for so believing • Provision of consular
information in parallel with reading of “Miranda rights” • Contention that seven
individuals stated at the time of arrest that they were United States nationals •
160
International law v. Municipal law
Interpretation of phrase “without delay” • Violation by United States of the
obligation to provide consular information in 51 cases.
Consular notification • Violation by United States of the obligation of
consular notification in 49 cases.
Article 36, paragraph 1 (a) and (c) • Interrelated nature of the three
subparagraphs of paragraph 1 • Violation by United States of the obligation to
enable Mexican consular officers to communicate with, have access to and visit
their nationals in 49 cases • Violation by United States of the obligation to enable
Mexican consular officers to arrange for legal representation of their nationals in
34 cases.
Article 36, paragraph 2 • “Procedural default” rule • Possibility of
judicial remedies still open in 49 cases • Violation by United States of its
obligations under Article 36, paragraph 2, in three cases.
**
Legal consequences of the breach.
Question of adequate reparation for violations of Article 36 • Review
and reconsideration by United States courts of convictions and sentences of the
Mexican nationals • Choice of means left to United States • Review and
reconsideration to be carried out by taking account of violation of Vienna
Convention rights • “Procedural default” rule.
Judicial process suited to the task of review and reconsideration •
Clemency process, as currently practised within the United States criminal justice
system, not sufficient in itself to serve as appropriate means of “review and
reconsideration” • Appropriate clemency procedures can supplement judicial
review and reconsideration.
Mexico requesting cessation of wrongful acts and guarantees and
assurances of non-repetition • No evidence to establish “regular and continuing”
pattern of breaches by United States of Article 36 of Vienna Convention •
Measures taken by United States to comply with its obligations under Article 36,
paragraph 1 • Commitment undertaken by United States to ensure implementation
of its obligations under that provision.
**
No a contrario argument can be made in respect of the Court’s findings
in the present Judgment concerning Mexican nationals.
**
United States obligations declared in Judgment replace those arising
from Provisional Measures Order of 5 February 2003 • In the three cases where
the United States violated its obligations under Article 36, paragraph 2, it must
find an appropriate remedy having the nature of review and reconsideration
according to the criteria indicated in the Judgment.
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JUDGMENT
Present: President SHI; Vice-President RANJEVA; Judges
GUILLAUME, KOROMA, VERESHCHETIN, HIGGINS, PARRAARANGUREN,
KOOIJMANS,
REZEK,
AL-KHASAWNEH,
BUERGENTHAL, ELARABY, OWADA, TOMKA;
Judge ad hoc SEPÚLVEDA; Registrar COUVREUR.
In the case concerning Avena and other Mexican nationals,
Between
the United Mexican States,
represented by
H.E. Mr. Juan Manuel Gómez-Robledo, Ambassador, former Legal
Adviser, Ministry of Foreign Affairs, Mexico City,
as Agent;
H.E. Mr. Santiago Oñate, Ambassador of Mexico to the Kingdom of the
Netherlands,
as Agent (until 12 February 2004);
Mr. Arturo A. Dager, Legal Adviser, Ministry of Foreign Affairs,
Mexico City,
Ms María del Refugio González Domínguez, Chief, Legal Co-ordination Unit,
Ministry of Foreign Affairs, Mexico City,
as Agents (from 2 March 2004);
H.E. Ms Sandra Fuentes Berain, Ambassador-Designate of Mexico to
the Kingdom of the Netherlands,
as Agent (from 17 March 2004);
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International law v. Municipal law
Mr. Pierre-Marie Dupuy, Professor of Public International Law at the
University of Paris II (Panthéon-Assas) and at the European University Institute,
Florence,
Mr. Donald Francis Donovan, Attorney at Law, Debevoise & Plimpton,
New York,
Ms Sandra L. Babcock, Attorney at Law, Director of the Mexican
Capital Legal Assistance Programme,
Mr. Carlos Bernal, Attorney at Law, Noriega y Escobedo, and Chairman
of the Commission on International Law at the Mexican Bar Association, Mexico
City,
Ms Katherine Birmingham Wilmore, Attorney at Law, Debevoise &
Plimpton, London,
Mr. Dietmar W. Prager, Attorney at Law, Debevoise & Plimpton, New
York,
Ms Socorro Flores Liera, Chief of Staff, Under-Secretariat for Global
Affairs and Human Rights, Ministry of Foreign Affairs, Mexico City,
Mr. Víctor Manuel Uribe Aviña, Head of the International Litigation
Section, Legal Adviser’s Office, Ministry of Foreign Affairs, Mexico City,
as Counsellors and Advocates;
Mr. Erasmo A. Lara Cabrera, Head of the International Law Section,
Legal Adviser’s Office, Ministry of Foreign Affairs, Mexico City,
Ms Natalie Klein, Attorney at Law, Debevoise & Plimpton, New York,
Ms Catherine Amirfar, Attorney at Law, Debevoise & Plimpton, New
York,
Mr. Thomas Bollyky, Attorney at Law, Debevoise & Plimpton, New
York,
Ms Cristina Hoss, Research Fellow at the Max Planck Institute for
Comparative Public Law and International Law, Heidelberg,
Mr. Mark Warren, International Law Researcher, Ottawa,
as Advisers;
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Lectures on the US Legal System
Mr. Michel L’Enfant, Debevoise & Plimpton, Paris,
as Assistant,
and
the United States of America,
represented by
The Honourable William H. Taft, IV, Legal Adviser, United States
Department of State,
as Agent;
Mr. James H. Thessin, Principal Deputy Legal Adviser, United States
Department of State,
as Co-Agent;
Ms Catherine W. Brown, Assistant Legal Adviser for Consular Affairs,
United States Department of State,
Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations
Affairs, United States Department of State,
Mr. Patrick F. Philbin, Associate Deputy Attorney General, United
States Department of Justice,
Mr. John Byron Sandage, Attorney-Adviser for United Nations Affairs,
United States Department of State,
Mr. Thomas Weigend, Professor of Law and Director of the Institute of
Foreign and International Criminal Law, University of Cologne,
Ms Elisabeth Zoller, Professor of Public Law, University of Paris II
(Panthéon-Assas),
as Counsel and Advocates;
Mr. Jacob Katz Cogan, Attorney-Adviser for United Nations Affairs,
United States Department of State,
164
International law v. Municipal law
Ms Sara Criscitelli, Member of the Bar of the State of New York,
Mr. Robert J. Erickson, Principal Deputy Chief, Criminal Appellate
Section, United States Department of Justice,
Mr. Noel J. Francisco, Deputy Assistant Attorney General, Office of
Legal Counsel, United States Department of Justice,
Mr. Steven Hill, Attorney-Adviser for Economic and Business Affairs,
United States Department of State,
Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The
Hague,
Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy,
The Hague,
Mr. Peter W. Mason, Attorney-Adviser for Consular Affairs, United
States Department of State,
as Counsel;
Ms Barbara Barrett-Spencer, United States Department of State,
Ms Marianne Hata, United States Department of State,
Ms Cecile Jouglet, United States Embassy, Paris,
Ms Joanne Nelligan, United States Department of State,
Ms Laura Romains, United States Embassy, The Hague,
as Administrative Staff,
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 9 January 2003 the United Mexican States (hereinafter referred to
as “Mexico”) filed in the Registry of the Court an Application instituting
proceedings against the United States of America (hereinafter referred to as the
“United States”) for “violations of the Vienna Convention on Consular Relations”
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Lectures on the US Legal System
of 24 April 1963 (hereinafter referred to as the “Vienna Convention”) allegedly
committed by the United States.
In its Application, Mexico based the jurisdiction of the Court on Article
36, paragraph 1, of the Statute of the Court and on Article I of the Optional
Protocol concerning the Compulsory Settlement of Disputes, which accompanies
the Vienna Convention (hereinafter referred to as the “Optional Protocol”).
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application
was forthwith communicated to the Government of the United States; and, in
accordance with paragraph 3 of that Article, all States entitled to appear before
the Court were notified of the Application.
3. On 9 January 2003, the day on which the Application was filed, the
Mexican Government also filed in the Registry of the Court a request for the
indication of provisional measures based on Article 41 of the Statute and Articles
73, 74 and 75 of the Rules of Court.
By an Order of 5 February 2003, the Court indicated the following
provisional measures:
“(a) The United States of America shall take all measures necessary to
ensure that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and
Mr. Osvaldo Torres Aguilera are not executed pending final judgment in these
proceedings;
(b) The Government of the United States of America shall inform the
Court of all measures taken in implementation of this Order.”
It further decided that, “until the Court has rendered its final judgment, it
shall remain seised of the matters” which formed the subject of that Order.
In a letter of 2 November 2003, the Agent of the United States advised
the Court that the United States had “informed the relevant state authorities of
Mexico’s application”; that, since the Order of 5 February 2003, the United States
had “obtained from them information about the status of the fifty-four cases,
including the three cases identified in paragraph 59 (I) (a) of that Order”; and that
the United States could “confirm that none of the named individuals [had] been
executed”.
4. In accordance with Article 43 of the Rules of Court, the Registrar sent
the notification referred to in Article 63, paragraph 1, of the Statute to all States
parties to the Vienna Convention or to that Convention and the Optional Protocol.
5. By an Order of 5 February 2003, the Court, taking account of the
views of the Parties, fixed 6 June 2003 and 6 October 2003, respectively, as the
166
International law v. Municipal law
time-limits for the filing of a Memorial by Mexico and of a Counter-Memorial by
the United States.
6. By an Order of 22 May 2003, the President of the Court, on the joint
request of the Agents of the two Parties, extended to 20 June 2003 the time-limit
for the filing of the Memorial; the time-limit for the filing of the CounterMemorial was extended, by the same Order, to 3 November 2003.
By a letter dated 20 June 2003 and received in the Registry on the same
day, the Agent of Mexico informed the Court that Mexico was unable for
technical reasons to file the original of its Memorial on time and accordingly
asked the Court to decide, under Article 44, paragraph 3, of the Rules of Court,
that the filing of the Memorial after the expiration of the time-limit fixed
therefore would be considered as valid; that letter was accompanied by two
electronic copies of the Memorial and its annexes. Mexico having filed the
original of the Memorial on 23 June 2003 and the United States having informed
the Court, by a letter of 24 June 2003, that it had no comment to make on the
matter, the Court decided on 25 June 2003 that the filing would be considered as
valid.
7. In a letter of 14 October 2003, the Agent of Mexico expressed his
Government’s wish to amend its submissions in order to include therein the cases
of two Mexican nationals, Mr. Víctor Miranda Guerrero and Mr. Tonatihu
Aguilar Saucedo, who had been sentenced to death, after the filing of Mexico’s
Memorial, as a result of criminal proceedings in which, according to Mexico, the
United States had failed to comply with its obligations under Article 36 of the
Vienna Convention.
In a letter of 2 November 2003, under cover of which the United States
filed its Counter-Memorial within the time-limit prescribed, the Agent of the
United States informed the Court that his Government objected to the amendment
of Mexico’s submissions, on the grounds that the request was late, that Mexico
had submitted no evidence concerning the alleged facts and that there was not
enough time for the United States to investigate them.
In a letter received in the Registry on 28 November 2003, Mexico
responded to the United States objection and at the same time amended its
submissions so as to withdraw its request for relief in the cases of two Mexican
nationals mentioned in the Memorial, Mr. Enrique Zambrano Garibi and Mr.
Pedro Hernández Alberto, having come to the conclusion that the former had dual
Mexican and United States nationality and that the latter had been informed of his
right of consular notification prior to interrogation.
On 9 December 2003, the Registrar informed Mexico and the United
States that, in order to ensure the procedural equality of the Parties, the Court had
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Lectures on the US Legal System
decided not to authorize the amendment of Mexico’s submissions so as to include
the two additional Mexican nationals mentioned above.
He also informed the Parties that the Court had taken note that the
United States had made no objection to the withdrawal by Mexico of its request
for relief in the cases of Mr. Zambrano and Mr. Hernández.
8. On 28 November 2003 and 2 December 2003, Mexico filed various
documents which it wished to produce in accordance with Article 56 of the Rules
of Court. By letters dated 2 December 2003 and 5 December 2003, the Agent of
the United States informed the Court that his Government did not object to the
production of these new documents and that it intended to exercise its right to
comment upon these documents and to submit documents in support of its
comments, pursuant to paragraph 3 of that Article. By letters dated 9 December
2003, the Registrar informed the Parties that the Court had taken note that the
United States had no objection to the production of these documents and that
accordingly counsel would be free to refer to them in the course of the hearings.
On 10 December 2003, the Agent of the United States filed the comments of his
Government on the new documents produced by Mexico, together with a number
of documents in support of those comments.
9. Since the Court included upon the Bench no judge of Mexican
nationality, Mexico availed itself of its right under Article 31, paragraph 2, of the
Statute to choose a judge ad hoc to sit in the case: it chose Mr. Bernardo
Sepúlveda.
10. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having
consulted the Parties, decided that copies of the pleadings and documents
annexed would be made accessible to the public on the opening of the oral
proceedings.
11. Public sittings were held between 15 and 19 December 2003, at
which the Court heard the oral arguments and replies of:
For Mexico: H.E. Mr. Juan Manuel Gómez-Robledo,
Ms Sandra L. Babcock,
Mr. Víctor Manuel Uribe Aviña,
Mr. Donald Francis Donovan,
Ms Katherine Birmingham Wilmore,
H.E. Mr. Santiago Oñate,
Ms Socorro Flores Liera,
Mr. Carlos Bernal,
Mr. Dietmar W. Prager,
Mr. Pierre-Marie Dupuy.
For the United States: The Honourable William H. Taft, IV,
Ms Elisabeth Zoller,
Mr. Patrick F. Philbin,
168
International law v. Municipal law
Mr. John Byron Sandage,
Ms Catherine W. Brown,
Mr. D. Stephen Mathias,
Mr. James H. Thessin,
Mr. Thomas Weigend.
*
12. In its Application, Mexico formulated the decision requested in the
following terms:
“The Government of the United Mexican States therefore asks the Court
to adjudge and declare:
(1) that the United States, in arresting, detaining, trying, convicting, and
sentencing the 54 Mexican nationals on death row described in this Application,
violated its international legal obligations to Mexico, in its own right and in the
exercise of its right of consular protection of its nationals, as provided by Articles
5 and 36, respectively of the Vienna Convention;
(2) that Mexico is therefore entitled to restitutio in integrum;
(3) that the United States is under an international legal obligation not to
apply the doctrine of procedural default, or any other doctrine of its municipal
law, to preclude the exercise of the rights afforded by Article 36 of the Vienna
Convention;
(4) that the United States is under an international legal obligation to
carry out in conformity with the foregoing international legal obligations any
future detention of or criminal proceedings against the 54 Mexican nationals on
death row or any other Mexican national in its territory, whether by a constituent,
legislative, executive, judicial or other power, whether that power holds a
superior or a subordinate position in the organization of the United States, and
whether that power’s functions are international or internal in character;
(5) that the right to consular notification under the Vienna Convention is
a human right; and that, pursuant to the foregoing international legal obligations,
(1) the United States must restore the status quo ante, that is, re-establish
the situation that existed before the detention of, proceedings against, and
convictions and sentences of, Mexico’s nationals in violation of the United States
international legal obligations;
(2) the United States must take the steps necessary and sufficient to
ensure that the provisions of its municipal law enable full effect to be given to the
purposes for which the rights afforded by Article 36 are intended;
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Lectures on the US Legal System
(3) the United States must take the steps necessary and sufficient to
establish a meaningful remedy at law for violations of the rights afforded to
Mexico and its nationals by Article 36 of the Vienna Convention, including by
barring the imposition, as a matter of municipal law, of any procedural penalty
for the failure timely to raise a claim or defence based on the Vienna Convention
where competent authorities of the United States have breached their obligation
to advise the national of his or her rights under the Convention; and
(4) the United States, in light of the pattern and practice of violations set
forth in this Application, must provide Mexico a full guarantee of the nonrepetition of the illegal acts.”
13. In the course of the written proceedings, the following submissions
were presented by the Parties:
On behalf of the Government of Mexico,
in the Memorial:
“For these reasons, . . . the Government of Mexico respectfully requests
the Court to adjudge and declare
(1) that the United States, in arresting, detaining, trying, convicting, and
sentencing the fifty-four Mexican nationals on death row described in Mexico’s
Application and this Memorial, violated its international legal obligations to
Mexico, in its own right and in the exercise of its right of diplomatic protection of
its nationals, as provided by Article 36 of the Vienna Convention;
(2) that the obligation in Article 36 (1) of the Vienna Convention
requires notification before the competent authorities of the receiving State
interrogate the foreign national or take any other action potentially detrimental to
his or her rights;
(3) that the United States, in applying the doctrine of procedural default,
or any other doctrine of its municipal law, to preclude the exercise and review of
the rights afforded by Article 36 of the Vienna Convention, violated its
international legal obligations to Mexico, in its own right and in the exercise of
its right of diplomatic protection of its nationals, as provided by Article 36 of the
Vienna Convention; and
(4) that the United States is under an international legal obligation to
carry out in conformity with the foregoing international legal obligations any
future detention of or criminal proceedings against the fifty-four Mexican
nationals on death row and any other Mexican national in its territory, whether by
a constituent, legislative, executive, judicial or other power, whether that power
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holds a superior or a subordinate position in the organization of the United States,
and whether that power’s functions are international or internal in character;
and that, pursuant to the foregoing international legal obligations,
(1) Mexico is entitled to restitutio in integrum and the United States
therefore is under an obligation to restore the status quo ante, that is, reestablish
the situation that existed at the time of the detention and prior to the interrogation
of, proceedings against, and convictions and sentences of, Mexico’s nationals in
violation of the United States’ international legal obligations, specifically by,
among other things,
(a) vacating the convictions of the fifty-four Mexican nationals;
(b) vacating the sentences of the fifty-four Mexican nationals;
(c) excluding any subsequent proceedings against the fifty-four Mexican
nationals any statements and confessions obtained from them prior to notification
of their rights to consular notification and access;
(d) preventing the application of any procedural penalty for a Mexican
national’s failure timely to raise a claim or defense based on the Vienna
Convention where competent authorities of the United States have breached their
obligation to advise the national of his rights under the Convention;
(e) preventing the application of any municipal law doctrine or judicial
holding that prevents a court in the United States from providing a remedy,
including the relief to which this Court holds that Mexico is entitled here, to a
Mexican national whose Article 36 rights have been violated; and
(f) preventing the application of any municipal law doctrine or judicial
holding that requires an individualized showing of prejudice as a prerequisite to
relief for the violations of Article 36;
(2) the United States, in light of the regular and continuous violations set
forth in Mexico’s Application and Memorial, is under an obligation to take all
legislative, executive, and judicial steps necessary to:
(a) ensure that the regular and continuing violations of the Article 36
consular notification, access, and assistance rights of Mexico and its nationals
cease;
(b) guarantee that its competent authorities, of federal, state, and local
jurisdiction, maintain regular and routine compliance with their Article 36
obligations;
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(c) ensure that its judicial authorities cease applying, and guarantee that
in the future they will not apply:
(i) any procedural penalty for a Mexican national’s failure timely to raise
a claim or defense based on the Vienna Convention where competent authorities
of the United States have breached their obligation to advise the national of his or
her rights under the Convention;
(ii) any municipal law doctrine or judicial holding that prevents a court
in the United States from providing a remedy, including the relief to which this
Court holds that Mexico is entitled here, to a Mexican national whose Article 36
rights have been violated; and
(iii) any municipal law doctrine or judicial holding that requires an
individualized showing of prejudice as a prerequisite to relief for the Vienna
Convention violations shown here.”
On behalf of the Government of the United States,
in the Counter-Memorial:
“On the basis of the facts and arguments set out above, the Government
of the United States of America requests that the Court adjudge and declare that
the claims of the United Mexican States are dismissed.”
14. At the oral proceedings, the following submissions were presented
by the Parties:
On behalf of the Government of Mexico,
“The Government of Mexico respectfully requests the Court to adjudge and
declare
(1) That the United States of America, in arresting, detaining, trying,
convicting, and sentencing the 52 Mexican nationals on death row described in
Mexico’s Memorial, violated its international legal obligations to Mexico, in its
own right and in the exercise of its right to diplomatic protection of its nationals,
by failing to inform, without delay, the 52 Mexican nationals after their arrest of
their right to consular notification and access under Article 36 (1) (b) of the
Vienna Convention on Consular Relations, and by depriving Mexico of its right
to provide consular protection and the 52 nationals’ right to receive such
protection as Mexico would provide under Article 36 (1) (a) and (c) of the
Convention;
(2) That the obligation in Article 36 (1) of the Vienna Convention
requires notification of consular rights and a reasonable opportunity for consular
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access before the competent authorities of the receiving State take any action
potentially detrimental to the foreign national’s rights;
(3) That the United States of America violated its obligations under
Article 36 (2) of the Vienna Convention by failing to provide meaningful and
effective review and reconsideration of convictions and sentences impaired by a
violation of Article 36 (1); by substituting for such review and reconsideration
clemency proceedings; and by applying the “procedural default” doctrine and
other municipal law doctrines that fail to attach legal significance to an Article 36
(1) violation on its own terms;
(4) That pursuant to the injuries suffered by Mexico in its own right and
in the exercise of diplomatic protection of its nationals, Mexico is entitled to full
reparation for those injuries in the form of restitutio in integrum;
(5) That this restitution consists of the obligation to restore the status
quo ante by annulling or otherwise depriving of full force or effect the
convictions and sentences of all 52 Mexican nationals;
(6) That this restitution also includes the obligation to take all measures
necessary to ensure that a prior violation of Article 36 shall not affect the
subsequent proceedings;
(7) That to the extent that any of the 52 convictions or sentences are not
annulled, the United States shall provide, by means of its own choosing,
meaningful and effective review and reconsideration of the convictions and
sentences of the 52 nationals, and that this obligation cannot be satisfied by
means of clemency proceedings or if any municipal law rule or doctrine
inconsistent with paragraph (3) above is applied; and
(8) That the United States of America shall cease its violations of Article
36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall
provide appropriate guarantees and assurances that it shall take measures
sufficient to achieve increased compliance with Article 36 (1) and to ensure
compliance with Article 36 (2).”
On behalf of the Government of the United States,
“On the basis of the facts and arguments made by the United States in its
Counter-Memorial and in these proceedings, the Government of the
United States of America requests that the Court, taking into account
that the United States has conformed its conduct to this Court’s
Judgment in the LaGrand Case (Germany v. United States of America),
not only with respect to German nationals but, consistent with the
Declaration of the President of the Court in that case, to all detained
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foreign nationals, adjudge and declare that the claims of the United
Mexican States are dismissed.”
*
**
15. The present proceedings have been brought by Mexico against the United
States on the basis of the Vienna Convention, and of the Optional Protocol
providing for the jurisdiction of the Court over “disputes arising out of the
interpretation or application” of the Convention. Mexico and the United States
are, and were at all relevant times, parties to the Vienna Convention and to the
Optional Protocol. Mexico claims that the United States has committed breaches
of the Vienna Convention in relation to the treatment of a number of Mexican
nationals who have been tried, convicted and sentenced to death in criminal
proceedings in the United States. The original claim related to 54 such persons,
but as a result of subsequent adjustments to its claim made by Mexico (see
paragraph 7 above), only 52 individual cases are involved. These criminal
proceedings have been taking place in nine different States of the United States,
namely California (28 cases), Texas (15 cases), Illinois (three cases), Arizona
(one case), Arkansas (one case), Nevada (one case), Ohio (one case), Oklahoma
(one case) and Oregon (one case), between 1979 and the present.
16. For convenience, the names of the 52 individuals, and the numbers
by which their cases will be referred to, are set out below:
1. Carlos Avena Guillen
2. Héctor Juan Ayala
3. Vicente Benavides Figueroa
4. Constantino Carrera Montenegro
5. Jorge Contreras López
6. Daniel Covarrubias Sánchez
7. Marcos Esquivel Barrera
8. Rubén Gómez Pérez
9. Jaime Armando Hoyos
10. Arturo Juárez Suárez
11. Juan Manuel López
12. José Lupercio Casares
13. Luis Alberto Maciel Hernández
14. Abelino Manríquez Jáquez
15. Omar Fuentes Martínez (a.k.a. Luis Aviles de la Cruz)
16. Miguel Angel Martínez Sánchez
17. Martín Mendoza García
18. Sergio Ochoa Tamayo
19. Enrique Parra Dueñas
20. Juan de Dios Ramírez Villa
21. Magdaleno Salazar
22. Ramón Salcido Bojórquez
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23. Juan Ramón Sánchez Ramírez
24. Ignacio Tafoya Arriola
25. Alfredo Valdez Reyes
26. Eduardo David Vargas
27. Tomás Verano Cruz
28. [Case withdrawn]
29. Samuel Zamudio Jiménez
30. Juan Carlos Alvarez Banda
31. César Roberto Fierro Reyna
32. Héctor García Torres
33. Ignacio Gómez
34. Ramiro Hernández Llanas
35. Ramiro Rubí Ibarra
36. Humberto Leal García
37. Virgilio Maldonado
38. José Ernesto Medellín Rojas
39. Roberto Moreno Ramos
40. Daniel Angel Plata Estrada
41. Rubén Ramírez Cárdenas
42. Félix Rocha Díaz
43. Oswaldo Regalado Soriano
44. Edgar Arias Tamayo
45. Juan Caballero Hernández
46. Mario Flores Urbán
47. Gabriel Solache Romero
48. Martín Raúl Fong Soto
49. Rafael Camargo Ojeda
50. [Case withdrawn]
51. Carlos René Pérez Gutiérrez
52. José Trinidad Loza
53. Osvaldo Netzahualcóyotl Torres Aguilera
54. Horacio Alberto Reyes Camarena
17. The provisions of the Vienna Convention of which Mexico alleges
violations are contained in Article 36. Paragraphs 1 and 2 of this Article are set
out respectively in paragraphs 50 and 108 below. Article 36 relates, according to
its title, to “Communication and contact with nationals of the sending State”.
Paragraph 1 (b) of that Article provides that if a national of that State “is arrested
or committed to prison or to custody pending trial or is detained in any other
manner”, and he so requests, the local consular post of the sending State is to be
notified. The Article goes on to provide that the “competent authorities of the
receiving State” shall “inform the person concerned without delay of his rights”
in this respect. Mexico claims that in the present case these provisions were not
complied with by the United States authorities in respect of the 52 Mexican
nationals the subject of its claims. As a result, the United States has according to
Mexico committed breaches of paragraph 1 (b); moreover, Mexico claims, for
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reasons to be explained below (see paragraphs 98 et seq.), that the United States
is also in breach of paragraph 1 (a) and (c) and of paragraph 2 of Article 36, in
view of the relationship of these provisions with paragraph 1 (b).
18. As regards the terminology employed to designate the obligations
incumbent upon the receiving State under Article 36, paragraph 1 (b), the Court
notes that the Parties have used the terms “inform” and “notify” in differing
senses. For the sake of clarity, the Court, when speaking in its own name in the
present Judgment, will use the word “inform” when referring to an individual
being made aware of his rights under that subparagraph and the word “notify”
when referring to the giving of notice to the consular post.
19. The underlying facts alleged by Mexico may be briefly described as
follows: some are conceded by the United States, and some disputed. Mexico
states that all the individuals the subject of its claims were Mexican nationals at
the time of their arrest. It further contends that the United States authorities that
arrested and interrogated these individuals had sufficient information at their
disposal to be aware of the foreign nationality of those individuals. According to
Mexico’s account, in 50 of the specified cases, Mexican nationals were never
informed by the competent United States authorities of their rights under Article
36, paragraph 1 (b), of the Vienna Convention and, in the two remaining cases,
such information was not provided “without delay”, as required by that provision.
Mexico has indicated that in 29 of the 52 cases its consular authorities learned of
the detention of the Mexican nationals only after death sentences had been
handed down. In the 23 remaining cases, Mexico contends that it learned of the
cases through means other than notification to the consular post by the competent
United States authorities under Article 36, paragraph 1 (b). It explains that in five
cases this was too late to affect the trials, that in 15 cases the defendants had
already made incriminating statements, and that it became aware of the other
three cases only after considerable delay.
20. Of the 52 cases referred to in Mexico’s final submissions, 49 are
currently at different stages of the proceedings before United States judicial
authorities at state or federal level, and in three cases, those of Mr. Fierro (case
No. 31), Mr. Moreno (case No. 39) and Mr. Torres (case No. 53), judicial
remedies within the United States have already been exhausted. The Court has
been informed of the variety of types of proceedings and forms of relief available
in the criminal justice systems of the United States, which can differ from state to
state. In very general terms, and according to the description offered by both
Parties in their pleadings, it appears that the 52 cases may be classified into three
categories: 24 cases which are currently in direct appeal; 25 cases in which means
of direct appeal have been exhausted, but post-conviction relief (habeas corpus),
either at State or at federal level, is still available; and three cases in which no
judicial remedies remain. The Court also notes that, in at least 33 cases, the
alleged breach of the Vienna Convention was raised by the defendant either
during pre-trial, at trial, on appeal or in habeas corpus proceedings, and that some
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of these claims were dismissed on procedural or substantive grounds and others
are still pending. To date, in none of the 52 cases have the defendants had
recourse to the clemency process.
21. On 9 January 2003, the day on which Mexico filed its Application
and a request for the indication of provisional measures, all 52 individuals the
subject of the claims were on death row. However, two days later the Governor of
the State of Illinois, exercising his power of clemency review, commuted the
sentences of all convicted individuals awaiting execution in that State, including
those of three individuals named in Mexico’s Application (Mr. Caballero (case
No. 45), Mr. Flores (case No. 46) and Mr. Solache (case No. 47)). By a letter
dated 20 January 2003, Mexico informed the Court that, further to that decision,
it withdrew its request for the indication of provisional measures on behalf of
these three individuals, but that its Application remained unchanged. In the Order
of 5 February 2003, mentioned in paragraph 3 above, on the request by Mexico
for the indication of provisional measures, the Court considered that it was
apparent from the information before it that the three Mexican nationals named in
the Application who had exhausted all judicial remedies in the United States (see
paragraph 20 above) were at risk of execution in the following months, or even
weeks. Consequently, it ordered by way of provisional measure that the United
States take all measures necessary to ensure that these individuals would not be
executed pending final judgment in these proceedings. The Court notes that, at
the date of the present Judgment, these three individuals have not been executed,
but further notes with great concern that, by an Order dated 1 March 2004, the
Oklahoma Court of Criminal Appeals has set an execution date of 18 May 2004
for Mr. Torres.
*
**
The Mexican objection to the United States objections to jurisdiction and
admissibility
22. As noted above, the present dispute has been brought before the
Court by Mexico on the basis of the Vienna Convention and the Optional
Protocol to that Convention. Article I of the Optional Protocol provides:
“Disputes arising out of the interpretation or application of the [Vienna]
Convention shall lie within the compulsory jurisdiction of the International Court
of Justice and may accordingly be brought before the Court by a written
application made by any party to the dispute being a Party to the present
Protocol.”
23. The United States has presented a number of objections to the
jurisdiction of the Court, as well as a number of objections to the admissibility of
the claims advanced by Mexico. It is however the contention of Mexico that all
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the objections raised by the United States are inadmissible as having been raised
after the expiration of the time-limit laid down by the Rules of Court. Mexico
draws attention to the text of Article 79, paragraph 1, of the Rules of Court as
amended in 2000, which provides that
“Any objection by the respondent to the jurisdiction of the Court or to
the admissibility of the application, or other objection the decision upon which is
requested before any further proceedings on the merits, shall be made in writing
as soon as possible, and not later than three months after the delivery of the
Memorial.”
The previous text of this paragraph required objections to be made
“within the time-limit fixed for delivery of the Counter-Memorial”. In the present
case the Memorial of Mexico was filed on 23 June 2003; the objections of the
United States to jurisdiction and admissibility were presented in its CounterMemorial, filed on 3 November 2003, more than four months later.
24. The United States has observed that, during the proceedings on the
request made by Mexico for the indication of provisional measures in this case, it
specifically reserved its right to make jurisdictional arguments at the appropriate
stage, and that subsequently the Parties agreed that there should be a single round
of pleadings. The Court would however emphasize that parties to cases before it
cannot, by purporting to “reserve their rights” to take some procedural action,
exempt themselves from the application to such action of the provisions of the
Statute and Rules of Court (cf. Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Order of 13 September 1993, I.C.J. Reports 1993, p. 338, para. 28).
The Court notes, however, that Article 79 of the Rules applies only to
preliminary objections, as is indicated by the title of the subsection of the Rules
which it constitutes. As the Court observed in the Lockerbie cases, “if it is to be
covered by Article 79, an objection must . . .possess a ‘preliminary’ character,”
and “Paragraph 1 of Article 79 of the Rules of Court characterizes as
‘preliminary’ an objection ‘the decision upon which is requested before any
further proceedings’” (Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, I.C.J. Reports 1998, p. 26, para. 47; p. 131,
para. 46); and the effect of the timely presentation of such an objection is that the
proceedings on the merits are suspended (paragraph 5 of Article 79). An
objection that is not presented as a preliminary objection in accordance with
paragraph 1 of Article 79 does not thereby become inadmissible. There are of
course circumstances in which the party failing to put forward an objection to
jurisdiction might be held to have acquiesced in jurisdiction (Appeal Relating to
the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 52, para.
13). However, apart from such circumstances, a party failing to avail itself of the
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Article 79 procedure may forfeit the right to bring about a suspension of the
proceedings on the merits, but can still argue the objection along with the merits.
That is indeed what the United States has done in this case; and, for reasons to be
indicated below, many of its objections are of such a nature that they would in
any event probably have had to be heard along with the merits. The Court
concludes that it should not exclude from consideration the objections of the
United States to jurisdiction and admissibility by reason of the fact that they were
not presented within three months from the date of filing of the Memorial.
25. The United States has submitted four objections to the jurisdiction of
the Court, and five to the admissibility of the claims of Mexico. As noted above,
these have not been submitted as preliminary objections under Article 79 of the
Rules of Court; and they are not of such a nature that the Court would be required
to examine and dispose of all of them in limine, before dealing with any aspect of
the merits of the case. Some are expressed to be only addressed to certain claims;
some are addressed to questions of the remedies to be indicated if the Court finds
that breaches of the Vienna Convention have been committed; and some are of
such a nature that they would have to be dealt with along with the merits. The
Court will however now examine each of them in turn.
*
United States objections to jurisdiction
26. The United States contends that the Court lacks jurisdiction to decide
many of Mexico’s claims, inasmuch as Mexico’s submissions in the Memorial
asked the Court to decide questions which do not arise out of the interpretation or
application of the Vienna Convention, and which the United States has never
agreed to submit to the Court.
*
27. By its first jurisdictional objection, the United States suggested that
the Memorial is fundamentally addressed to the treatment of Mexican nationals in
the federal and state criminal justice systems of the United States, and the
operation of the United States criminal justice system as a whole. It suggested
that Mexico’s invitation to the Court to make what the United States regards as
“far-reaching and unsustainable findings concerning the United States criminal
justice systems” would be an abuse of the Court’s jurisdiction. At the hearings,
the United States contended that Mexico is asking the Court to interpret and
apply the treaty as if it were intended principally to govern the operation of a
State’s criminal justice system as it affects foreign nationals.
28. The Court would recall that its jurisdiction in the present case has
been invoked under the Vienna Convention and Optional Protocol to determine
the nature and extent of the obligations undertaken by the United States towards
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Mexico by becoming party to that Convention. If and so far as the Court may find
that the obligations accepted by the parties to the Vienna Convention included
commitments as to the conduct of their municipal courts in relation to the
nationals of other parties, then in order to ascertain whether there have been
breaches of the Convention, the Court must be able to examine the actions of
those courts in the light of international law. The Court is unable to uphold the
contention of the United States that, as a matter of jurisdiction, it is debarred from
enquiring into the conduct of criminal proceedings in United States courts. How
far it may do so in the present case is a matter for the merits. The first objection
of the United States to jurisdiction cannot therefore be upheld.
*
29. The second jurisdictional objection presented by the United States
was addressed to the first of the submissions presented by Mexico in its
Memorial (see paragraph 13 above). The United States pointed out that Article 36
of the Vienna Convention “creates no obligations constraining the rights of the
United States to arrest a foreign national”; and that similarly the “detaining,
trying, convicting and sentencing” of Mexican nationals could not constitute
breaches of Article 36, which merely lays down obligations of notification. The
United States deduced from this that the matters raised in Mexico’s first
submission are outside the jurisdiction of the Court under the Vienna Convention
and the Optional Protocol, and it maintains this objection in response to the
revised submission, presented by Mexico at the hearings, whereby it asks the
Court to adjudge and declare:
“That the United States of America, in arresting, detaining, trying,
convicting, and sentencing the 52 Mexican nationals on death row described in
Mexico’s Memorial, violated its international legal obligations to Mexico, in its
own right and in the exercise of its right to diplomatic protection of its nationals,
by failing to inform, without delay, the 52 Mexican nationals after their arrest of
their right to consular notification and access under Article 36 (1) (b) of the
Vienna Convention on Consular Relations, and by depriving Mexico of its right
to provide consular protection and the 52 nationals’ right to receive such
protection as Mexico would provide under Article 36 (1) (a) and (c) of the
Convention.”
30. This issue is a question of interpretation of the obligations imposed
by the Vienna Convention. It is true that the only obligation of the receiving State
toward a foreign national that is specifically enunciated by Article 36, paragraph
1 (b), of the Vienna Convention is to inform such foreign national of his rights,
when he is “arrested or committed to prison or to custody pending trial or is
detained in any other manner”; the text does not restrain the receiving State from
“arresting, detaining, trying, convicting, and sentencing” the foreign national, or
limit its power to do so. However, as regards the detention, trial, conviction and
sentence of its nationals, Mexico argues that depriving a foreign national facing
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criminal proceedings of consular notification and assistance renders those
proceedings fundamentally unfair. Mexico explains in this respect that:
“Consular notification constitutes a basic component of due process by
ensuring both the procedural equality of a foreign national in the criminal process
and the enforcement of other fundamental due process guarantees to which that
national is entitled”, and that “It is therefore an essential requirement for fair
criminal proceedings against foreign nationals.” In Mexico’s contention,
“consular notification has been widely recognized as a fundamental due process
right, and indeed, a human right”. On this basis it argues that the rights of the
detained Mexican nationals have been violated by the authorities of the United
States, and that those nationals have been “subjected to criminal proceedings
without the fairness and dignity to which each person is entitled”. Consequently,
in the contention of Mexico, “the integrity of these proceedings has been
hopelessly undermined, their outcomes rendered irrevocably unjust”. For Mexico
to contend, on this basis, that not merely the failure to notify, but the arrest,
detention, trial and conviction of its nationals were unlawful is to argue in favour
of a particular interpretation of the Vienna Convention. Such an interpretation
may or may not be confirmed on the merits, but is not excluded from the
jurisdiction conferred on the Court by the Optional Protocol to the Vienna
Convention. The second objection of the United States to jurisdiction cannot
therefore be upheld.
*
31. The third objection by the United States to the jurisdiction of the
Court refers to the first of the submissions in the Mexican Memorial concerning
remedies. By that submission, which was confirmed in substance in the final
submissions, Mexico claimed that
“Mexico is entitled to restitutio in integrum, and the United States
therefore is under an obligation to restore the status quo ante, that is, reestablish
the situation that existed at the time of the detention and prior to the interrogation
of, proceedings against, and convictions and sentences of, Mexico’s nationals in
violation of the United States’ international legal obligations . . .”
On that basis, Mexico went on in its first submission to invite the Court to declare
that the United States was bound to vacate the convictions and sentences of the
Mexican nationals concerned, to exclude from any subsequent proceedings any
statements and confessions obtained from them, to prevent the application of any
procedural penalty for failure to raise a timely defence on the basis of the
Convention, and to prevent the application of any municipal law rule preventing
courts in the United States from providing a remedy for the violation of Article
36 rights.
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32. The United States objects that so to require specific acts by the
United States in its municipal criminal justice systems would intrude deeply into
the independence of its courts; and that for the Court to declare that the United
States is under a specific obligation to vacate convictions and sentences would be
beyond its jurisdiction. The Court, the United States claims, has no jurisdiction to
review appropriateness of sentences in criminal cases, and even less to determine
guilt or innocence, matters which only a court of criminal appeal could go into.
33. For its part, Mexico points out that the United States accepts that the
Court has jurisdiction to interpret the Vienna Convention and to determine the
appropriate form of reparation under international law. In Mexico’s view, these
two considerations are sufficient to defeat the third objection to jurisdiction of the
United States.
34. For the same reason as in respect of the second jurisdictional
objection, the Court is unable to uphold the contention of the United States that,
even if the Court were to find that breaches of the Vienna Convention have been
committed by the United States of the kind alleged by Mexico, it would still be
without jurisdiction to order restitutio in integrum as requested by Mexico. The
Court would recall in this regard, as it did in the LaGrand case, that, where
jurisdiction exists over a dispute on a particular matter, no separate basis for
jurisdiction is required by the Court in order to consider the remedies a party has
requested for the breach of the obligation (I.C.J. Reports 2001, p. 485, para. 48).
Whether or how far the Court may order the remedy requested by Mexico are
matters to be determined as part of the merits of the dispute. The third objection
of the United States to jurisdiction cannot therefore be upheld.
*
35. The fourth and last jurisdictional objection of the United States is
that “the Court lacks jurisdiction to determine whether or not consular
notification is a ‘human right’, or to declare fundamental requirements of
substantive or procedural due process”. As noted above, it is on the basis of
Mexico’s contention that the right to consular notification has been widely
recognized as a fundamental due process right, and indeed a human right, that it
argues that the rights of the detained Mexican nationals have been violated by the
authorities of the United States, and that they have been “subjected to criminal
proceedings without the fairness and dignity to which each person is entitled”.
The Court observes that Mexico has presented this argument as being a matter of
interpretation of Article 36, paragraph 1 (b), and therefore belonging to the
merits. The Court considers that this is indeed a question of interpretation of the
Vienna Convention, for which it has jurisdiction; the fourth objection of the
United States to jurisdiction cannot therefore be upheld.
**
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United States objections to admissibility
36. In its Counter-Memorial, the United States has advanced a number
of arguments presented as objections to the admissibility of Mexico’s claims. It
argues that
“Before proceeding, the Court should weigh whether characteristics of
the case before it today, or special circumstances related to particular claims,
render either the entire case, or particular claims, inappropriate for further
consideration and decision by the Court.”
*
37. The first objection under this head is that “Mexico’s submissions
should be found inadmissible because they seek to have this Court function as a
court of criminal appeal”; there is, in the view of the United States, “no other apt
characterization of Mexico’s two submissions in respect of remedies”. The Court
notes that this contention is addressed solely to the question of remedies. The
United States does not contend on this ground that the Court should decline
jurisdiction to enquire into the question of breaches of the Vienna Convention at
all, but simply that, if such breaches are shown, the Court should do no more than
decide that the United States must provide “review and reconsideration” along
the lines indicated in the Judgment in the LaGrand case (I.C.J. Reports 2001, pp.
513-514, para. 125). The Court notes that this is a matter of merits. The first
objection of the United States to admissibility cannot therefore be upheld.
*
38. The Court now turns to the objection of the United States based on
the rule of exhaustion of local remedies. The United States contends that the
Court “should find inadmissible Mexico’s claim to exercise its right of diplomatic
protection on behalf of any Mexican national who has failed to meet the
customary legal requirement of exhaustion of municipal remedies”. It asserts that
in a number of the cases the subject of Mexico’s claims, the detained Mexican
national, even with the benefit of the provision of Mexican consular assistance,
failed to raise the alleged non-compliance with Article 36, paragraph 1, of the
Vienna Convention at the trial. Furthermore, it contends that all of the claims
relating to cases referred to in the Mexican Memorial are inadmissible because
local remedies remain available in every case. It has drawn attention to the fact
that litigation is pending before courts in the United States in a large number of
the cases the subject of Mexico’s claims and that, in those cases where judicial
remedies have been exhausted, the defendants have not had recourse to the
clemency process available to them; from this it concludes that none of the cases
“is in an appropriate posture for review by an international tribunal”.
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39. Mexico responds that the rule of exhaustion of local remedies cannot
preclude the admissibility of its claims. It first states that a majority of the
Mexican nationals referred to in paragraph 16 above have sought judicial
remedies in the United States based on the Vienna Convention and that their
claims have been barred, notably on the basis of the procedural default doctrine.
In this regard, it quotes the Court’s statement in the LaGrand case that “the
United States may not . . . rely before this Court on this fact in order to preclude
the admissibility of Germany’s [claim] . . ., as it was the United States itself
which had failed to carry out its obligation under the Convention to inform the
LaGrand brothers” (I.C.J. Reports 2001, p. 488, para. 60). Further, in respect of
the other Mexican nationals, Mexico asserts that
“the courts of the United States have never granted a judicial remedy to
any foreign national for a violation of Article 36. The United States courts hold
either that Article 36 does not create an individual right, or that a foreign national
who has been denied his Article 36 rights but given his constitutional and
statutory rights, cannot establish prejudice and therefore cannot get relief.”
It concludes that the available judicial remedies are thus ineffective. As
for clemency procedures, Mexico contends that they cannot count for purposes of
the rule of exhaustion of local remedies, because they are not a judicial remedy.
40. In its final submissions Mexico asks the Court to adjudge and
declare that the United States, in failing to comply with Article 36, paragraph 1,
of the Vienna Convention, has “violated its international legal obligations to
Mexico, in its own right and in the exercise of its right of diplomatic protection of
its nationals”.
The Court would first observe that the individual rights of Mexican
nationals under subparagraph 1 (b) of Article 36 of the Vienna Convention are
rights which are to be asserted, at any rate in the first place, within the domestic
legal system of the United States. Only when that process is completed and local
remedies are exhausted would Mexico be entitled to espouse the individual
claims of its nationals through the procedure of diplomatic protection.
In the present case Mexico does not, however, claim to be acting solely
on that basis. It also asserts its own claims, basing them on the injury which it
contends that it has itself suffered, directly and through its nationals, as a result of
the violation by the United States of the obligations incumbent upon it under
Article 36, paragraph 1 (a), (b) and (c).
The Court would recall that, in the LaGrand case, it recognized that
“Article 36, paragraph 1 [of the Vienna Convention], creates individual rights
[for the national concerned], which . . . may be invoked in this Court by the
national State of the detained person” (I.C.J. Reports 2001, p. 494, para. 77). It
would further observe that violations of the rights of the individual under Article
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36 may entail a violation of the rights of the sending State, and that violations of
the rights of the latter may entail a violation of the rights of the individual. In
these special circumstances of interdependence of the rights of the State and of
individual rights, Mexico may, in submitting a claim in its own name, request the
Court to rule on the violation of rights which it claims to have suffered both
directly and through the violation of individual rights conferred on Mexican
nationals under Article 36, paragraph 1 (b). The duty to exhaust local remedies
does not apply to such a request. Further, for reasons just explained, the Court
does not find it necessary to deal with Mexico’s claims of violation under a
distinct heading of diplomatic protection. Without needing to pronounce at this
juncture on the issues raised by the procedural default rule, as explained by
Mexico in paragraph 39 above, the Court accordingly finds that the second
objection by the United States to admissibility cannot be upheld.
*
41. The Court now turns to the question of the alleged dual nationality of
certain of the Mexican nationals the subject of Mexico’s claims. This question is
raised by the United States by way of an objection to the admissibility of those
claims: the United States contends that in its Memorial Mexico had failed to
establish that it may exercise diplomatic protection based on breaches of
Mexico’s rights under the Vienna Convention with respect to those of its
nationals who are also nationals of the United States. The United States regards it
as an accepted principle that, when a person arrested or detained in the receiving
State is a national of that State, then even if he is also a national of another State
party to the Vienna Convention, Article 36 has no application, and the authorities
of the receiving State are not required to proceed as laid down in that Article; and
Mexico has indicated that, for the purposes of the present case it does not contest
that dual nationals have no right to be advised of their rights under Article 36.
42. It has however to be recalled that Mexico, in addition to seeking to
exercise diplomatic protection of its nationals, is making a claim in its own right
on the basis of the alleged breaches by the United States of Article 36 of the
Vienna Convention. Seen from this standpoint, the question of dual nationality is
not one of admissibility, but of merits. A claim may be made by Mexico of
breach of Article 36 of the Vienna Convention in relation to any of its nationals,
and the United States is thereupon free to show that, because the person
concerned was also a United States national, Article 36 had no application to that
person, so that no breach of treaty obligations could have occurred. Furthermore,
as regards the claim to exercise diplomatic protection, the question whether
Mexico is entitled to protect a person having dual Mexican and United States
nationality is subordinated to the question whether, in relation to such a person,
the United States was under any obligation in terms of Article 36 of the Vienna
Convention. It is thus in the course of its examination of the merits that the Court
will have to consider whether the individuals concerned, or some of them, were
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dual nationals in law. Without prejudice to the outcome of such examination, the
third objection of the United States to admissibility cannot therefore be upheld.
*
43. The Court now turns to the fourth objection advanced by the United
States to the admissibility of Mexico’s claims: the contention that “The
Court should not permit Mexico to pursue a claim against the United
States with respect to any individual case where Mexico had actual
knowledge of a breach of the [Vienna Convention] but failed to bring
such breach to the attention of the United States or did so only after
considerable delay.” In the Counter-Memorial, the United States
advances two considerations in support of this contention: that if the
cases had been mentioned promptly, corrective action might have been
possible; and that by inaction Mexico created an impression that it
considered that the United States was meeting its obligations under the
Convention, as Mexico understood them. At the hearings, the United
States suggested that Mexico had in effect waived its right to claim in
respect of the alleged breaches of the Convention, and to seek
reparation.
44. As the Court observed in the case of Certain Phosphate Lands in
Nauru (Nauru v. Australia), “delay on the part of a claimant State may render an
application inadmissible”, but “international law does not lay down any specific
time-limit in that regard” (I.C.J. Reports 1992, pp. 253-254, para. 32). In that case
the Court recognized that delay might prejudice the respondent State “with regard
to both the establishment of the facts and the determination of the content of the
applicable law” (ibid., p. 255, para. 36), but it has not been suggested that there is
any such risk of prejudice in the present case. So far as inadmissibility might be
based on an implied waiver of rights, the Court considers that only a much more
prolonged and consistent inaction on the part of Mexico than any that the United
States has alleged might be interpreted as implying such a waiver. Furthermore,
Mexico indicated a number of ways in which it brought to the attention of the
United States the breaches which it perceived of the Vienna Convention. The
fourth objection of the United States to admissibility cannot therefore be upheld.
*
45. The Court has now to examine the objection of the United States that
the claim of Mexico is inadmissible in that Mexico should not be allowed to
invoke against the United States standards that Mexico does not follow in its own
practice. The United States contends that, in accordance with basic principles of
administration of justice and the equality of States, both litigants are to be held
accountable to the same rules of international law. The objection in this regard
was presented in terms of the interpretation of Article 36 of the Vienna
Convention, in the sense that, according to the United States, a treaty may not be
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interpreted so as to impose a significantly greater burden on any one party than
the other (Diversion of Water from the Meuse, Judgment, 1937, P.C.I.J., Series
A/B, No. 70, p. 20).
46. The Court would recall that the United States had already raised an
objection of a similar nature before it in the LaGrand case; there, the Court held
that it need not decide “whether this argument of the United States, if true, would
result in the inadmissibility of Germany’s submissions”, since the United States
had failed to prove that Germany’s own practice did not conform to the standards
it was demanding from the United States (I.C.J. Reports 2001, p. 489, para. 63).
47. The Court would recall that it is in any event essential to have in
mind the nature of the Vienna Convention. It lays down certain standards to be
observed by all States parties, with a view to the “unimpeded conduct of consular
relations”, which, as the Court observed in 1979, is important in present-day
international law “in promoting the development of friendly relations among
nations, and ensuring protection and assistance for aliens resident in the territories
of other States” (United States Diplomatic and Consular Staff in Tehran (United
States of America v. Iran), Order of 15 December 1979, I.C.J. Reports 1979, pp.
19-20, para. 40). Even if it were shown, therefore, that Mexico’s practice as
regards the application of Article 36 was not beyond reproach, this would not
constitute a ground of objection to the admissibility of Mexico’s claim. The fifth
objection of the United States to admissibility cannot therefore be upheld.
*
**
48. Having established that it has jurisdiction to entertain Mexico’s
claims and that they are admissible, the Court will now turn to the merits
of those claims.
**
Article 36, paragraph 1
49. In its final submissions Mexico asks the Court to adjudge and
declare that,
“the United States of America, in arresting, detaining, trying, convicting,
and sentencing the 52 Mexican nationals on death row described in Mexico’s
Memorial, violated its international legal obligations to Mexico, in its own right
and in the exercise of its right to diplomatic protection of its nationals, by failing
to inform, without delay, the 52 Mexican nationals after their arrest of their right
to consular notification and access under Article 36 (1) (b) of the Vienna
Convention on Consular Relations, and by depriving Mexico of its right to
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provide consular protection and the 52 nationals’ right to receive such protection
as Mexico would provide under Article 36 (1) (a) and (c) of the Convention”.
50. The Court has already in its Judgment in the LaGrand case described
Article 36, paragraph 1, as “an interrelated régime designed to facilitate the
implementation of the system of consular protection” (I.C.J. Reports 2001, p.
492, para. 74). It is thus convenient to set out the entirety of that paragraph.
“With a view toward facilitating the exercise of consular functions
relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending State shall
have the same freedom with respect to communication with and access to
consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if, within its
consular district, a national of that State is arrested or committed to prison or to
custody pending trial or is detained in any other manner. Any communication
addressed to the consular post by the person arrested, in prison, custody or
detention shall be forwarded by the said authorities without delay. The said
authorities shall inform the person concerned without delay of his rights under
this subparagraph;
(c) consular officers shall have the right to visit a national of the sending
State who is in prison, custody or detention, to converse and correspond with him
and to arrange for his legal representation. They shall also have the right to visit
any national of the sending State who is in prison, custody or detention in their
district in pursuance of a judgment. Nevertheless, consular officers shall refrain
from taking action on behalf of a national who is in prison, custody or detention if
he expressly opposes such action.”
51. The United States as the receiving State does not deny its duty to
perform these obligations. However, it claims that the obligations apply only to
individuals shown to be of Mexican nationality alone, and not to those of dual
Mexican/United States nationality. The United States further contends inter alia
that it has not committed any breach of Article 36, paragraph 1 (b), upon the
proper interpretation of “without delay” as used in that subparagraph.
52. Thus two major issues under Article 36, paragraph 1 (b), that are in
dispute between the Parties are, first, the question of the nationality of the
individuals concerned; and second, the question of the meaning to be given to the
expression “without delay”. The Court will examine each of these in turn.
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53. The Parties have advanced their contentions as to nationality in three
different legal contexts. The United States has begun by making an objection to
admissibility, which the Court has already dealt with (see paragraphs 41 and 42
above). The United States has further contended that a substantial number of the
52 persons listed in paragraph 16 above were United States nationals and that it
thus had no obligation to these individuals under Article 36, paragraph 1 (b). The
Court will address this aspect of the matter in the following paragraphs. Finally,
the Parties to whether the requirement under Article 36, paragraph 1 (b), for the
information to be given “without delay” becomes operative upon arrest or upon
ascertainment of nationality. The Court will address this issue later (see
paragraph 63 below).
54. The Parties disagree as to what each of them must show as regards
nationality in connection with the applicability of the terms of Article 36,
paragraph 1, and as to how the principles of evidence have been met on the facts
of the cases.
55. Both Parties recognize the well-settled principle in international law
that a litigant seeking to establish the existence of a fact bears the burden of
proving it (cf. Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, p. 437, para. 101). Mexico acknowledges that it
has the burden of proof to show that the 52 persons listed in paragraph 16 above
were Mexican nationals to whom the provisions of Article 36, paragraph 1 (b), in
principle apply. It claims it has met this burden by providing to the Court the
birth certificates of these nationals, and declarations from 42 of them that they
have not acquired U.S. nationality. Mexico further contends that the burden of
proof lies on the United States should it wish to contend that particular arrested
persons of Mexican nationality were, at the relevant time, also United States
nationals.
56. The United States accepts that in such cases it has the burden of
proof to demonstrate United States nationality, but contends that nonetheless the
“burden of evidence” as to this remains with Mexico. This distinction is
explained by the United States as arising out of the fact that persons of Mexican
nationality may also have acquired United States citizenship by operation of law,
depending on their parents’ dates and places of birth, places of residency, marital
status at time of their birth and so forth. In the view of the United States
“virtually all such information is in the hands of Mexico through the now 52
individuals it represents”. The United States contends that it was the
responsibility of Mexico to produce such information, which responsibility it has
not discharged.
57. The Court finds that it is for Mexico to show that the 52 persons
listed in paragraph 16 above held Mexican nationality at the time of their arrest.
The Court notes that to this end Mexico has produced birth certificates and
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declarations of nationality, whose contents have not been challenged by the
United States.
The Court observes further that the United States has, however,
questioned whether some of these individuals were not also United States
nationals. Thus, the United States has informed the Court that, “in the case of
defendant Ayala (case No. 2) we are close to certain that Ayala is a United States
citizen”, and that this could be confirmed with absolute certainty if Mexico
produced facts about this matter. Similarly Mr. Avena (case No. 1) was said to be
“likely” to be a United States citizen, and there was “some possibility” that some
16 other defendants were United States citizens. As to six others, the United
States said it “cannot rule out the possibility” of United States nationality. The
Court takes the view that it was for the United States to demonstrate that this was
so and to furnish the Court with all information on the matter in its possession. In
so far as relevant data on that matter are said by the United States to lie within the
knowledge of Mexico, it was for the United States to have sought that
information from the Mexican authorities. The Court cannot accept that, because
such information may have been in part in the hands of Mexico, it was for
Mexico to produce such information. It was for the United States to seek such
information, with sufficient specificity, and to demonstrate both that this was
done and that the Mexican authorities declined or failed to respond to such
specific requests. At no stage, however, has the United States shown the Court
that it made specific enquiries of those authorities about particular cases and that
responses were not forthcoming. The Court accordingly concludes that the United
States has not met its burden of proof in its attempt to show that persons of
Mexican nationality were also United States nationals. The Court therefore finds
that, as regards the 52 persons listed in paragraph 16 above, the United States had
obligations under Article 36, paragraph 1 (b).
58. Mexico asks the Court to find that
“the obligation in Article 36, paragraph 1, of the Vienna Convention
requires notification of consular rights and a reasonable opportunity for consular
access before the competent authorities of the receiving State take any action
potentially detrimental to the foreign national’s rights”.
59. Mexico contends that, in each of the 52 cases before the Court, the
United States failed to provide the arrested persons with information as to their
rights under Article 36, paragraph 1 (b), “without delay”. It alleges that in one
case, Mr. Esquivel (case No. 7), the arrested person was informed, but only some
18 months after the arrest, while in another, that of Mr. Juárez (case No. 10),
information was given to the arrested person of his rights some 40 hours after
arrest. Mexico contends that this still constituted a violation, because “without
delay” is to be understood as meaning “immediately”, and in any event before
any interrogation occurs. Mexico further draws the Court’s attention to the fact
that in this case a United States court found that there had been a violation of
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Article 36, paragraph 1 (b), and claims that the United States cannot disavow
such a determination by its own courts. In an Annex to its Memorial, Mexico
mentions that, in a third case (Mr. Ayala, case No. 2), the accused was informed
of his rights upon his arrival on death row, some four years after arrest. Mexico
contends that in the remaining cases the Mexicans concerned were in fact never
so informed by the United States authorities.
60. The United States disputes both the facts as presented by Mexico and
the legal analysis of Article 36, paragraph 1 (b), of the Vienna Convention
offered by Mexico. The United States claims that Mr. Solache (case No. 47) was
informed of his rights under the Vienna Convention some seven months after his
arrest. The United States further claims that many of the persons concerned were
of United States nationality and that at least seven of these individuals “appear to
have affirmatively claimed to be United States citizens at the time of their arrest”.
These cases were said to be those of Avena (case No. 1), Ayala (case No. 2),
Benavides (case No. 3), Ochoa (case No. 18), Salcido (case No. 22), Tafoya (case
No. 24), and Alvarez (case No. 30). In the view of the United States no duty of
consular information arose in these cases. Further, in the contention of the United
States, in the cases of Mr. Ayala (case No. 2) and Mr. Salcido (case No. 22) there
was no reason to believe that the arrested persons were Mexican nationals at any
stage; the information in the case of Mr. Juárez (case No. 10) was given “without
delay”.
61. The Court thus now turns to the interpretation of Article 36,
paragraph 1 (b), having found in paragraph 57 above that it is applicable to the 52
persons listed in paragraph 16. It begins by noting that Article 36, paragraph 1
(b), contains three separate but interrelated elements: the right of the individual
concerned to be informed without delay of his rights under Article 36, paragraph
1 (b); the right of the consular post to be notified without delay of the individual’s
detention, if he so requests; and the obligation of the receiving State to forward
without delay any communication addressed to the consular post by the detained
person.
62. The third element of Article 36, paragraph 1 (b), has not been raised
on the facts before the Court. The Court thus begins with the right of an arrested
or detained individual to information.
63. The Court finds that the duty upon the detaining authorities to give
the Article 36, paragraph 1 (b), information to the individual arises once it is
realized that the person is a foreign national, or once there are grounds to think
that the person is probably a foreign national. Precisely when this may occur will
vary with circumstances. The United States Department of State booklet,
Consular Notification and Access • Instructions for Federal, State and Local Law
Enforcement and Other Officials Regarding Foreign Nationals in the United
States and the Rights of Consular Officials to Assist Them, issued to federal, state
and local authorities in order to promote compliance with Article 36 of the
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Vienna Convention points out in such cases that: “most, but not all, persons born
outside the United States are not [citizens]. Unfamiliarity with English may also
indicate foreign nationality.” The Court notes that when an arrested person
himself claims to be of United States nationality, the realization by the authorities
that he is not in fact a United States national, or grounds for that realization, is
likely to come somewhat later in time.
64. The United States has told the Court that millions of aliens reside,
either legally or illegally, on its territory, and moreover that its laws concerning
citizenship are generous. The United States has also pointed out that it is a
multicultural society, with citizenship being held by persons of diverse
appearance, speaking many languages. The Court appreciates that in the United
States the language that a person speaks, or his appearance, does not necessarily
indicate that he is a foreign national. Nevertheless, and particularly in view of the
large numbers of foreign nationals living in the United States, these very
circumstances suggest that it would be desirable for enquiry routinely to be made
of the individual as to his nationality upon his detention, so that the obligations of
the Vienna Convention may be complied with. The United States has informed
the Court that some of its law enforcement authorities do routinely ask persons
taken into detention whether they are United States citizens. Indeed, were each
individual to be told at that time that, should he be a foreign national, he is
entitled to ask for his consular post to be contacted, compliance with this
requirement under Article 36, paragraph 1 (b), would be greatly enhanced.
The provision of such information could parallel the reading of those
rights of which any person taken into custody in connection with a criminal
offence must be informed prior to interrogation by virtue of what in the United
States is known as the “Miranda rule”; these rights include, inter alia, the right to
remain silent, the right to have an attorney present during questioning, and the
right to have an attorney appointed at government expense if the person cannot
afford one. The Court notes that, according to the United States, such a practice
in respect of the Vienna Convention rights is already being followed in some
local jurisdictions.
65. Bearing in mind the complexities explained by the United States, the
Court now begins by examining the application of Article 36, paragraph 1 (b), of
the Vienna Convention to the 52 cases. In 45 of these cases, the Court has no
evidence that the arrested persons claimed United States nationality, or were
reasonably thought to be United States nationals, with specific enquiries being
made in timely fashion to verify such dual nationality. The Court has explained in
paragraph 57 above what inquiries it would have expected to have been made,
within a short time period, and what information should have been provided to
the Court.
66. Seven persons, however, are asserted by the United States to have
stated at the time of arrest that they were United States citizens. Only in the case
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of Mr. Salcido (case No. 22) has the Court been provided by the United States
with evidence of such a statement. This has been acknowledged by Mexico.
Further, there has been no evidence before the Court to suggest that there were in
this case at the same time also indications of Mexican nationality, which should
have caused rapid enquiry by the arresting authorities and the providing of
consular information “without delay”. Mexico has accordingly not shown that in
the case of Mr. Salcido the United States violated its obligations under Article 36,
paragraph 1 (b).
67. In the case of Mr. Ayala (case No. 2), while he was identified in a
court record in 1989 (three years after his arrest) as a United States citizen, there
is no evidence to show this Court that the accused did indeed claim upon his
arrest to be a United States citizen. The Court has not been informed of any
enquiries made by the United States to confirm these assertions of United States
nationality.
68. In the five other cases listed by the United States as cases where the
individuals “appear to have affirmatively claimed to be United States citizens at
the time of their arrest”, no evidence has been presented that such a statement was
made at the time of arrest.
69. Mr. Avena (case No. 1) is listed in his arrest report as having been
born in California. His prison records describe him as of Mexican nationality.
The United States has not shown the Court that it was engaged in enquiries to
confirm United States nationality.
70. Mr. Benavides (case No. 3) was carrying an Immigration and
Naturalization Service immigration card at the time of arrest in 1991. The Court
has not been made aware of any reason why the arresting authorities should
nonetheless have believed at the time of arrest that he was a United States
national. The evidence that his defence counsel in June 1993 informed the court
that Mr. Benavides had become a United States citizen is irrelevant to what was
understood as to his nationality at time of arrest.
71. So far as Mr. Ochoa is concerned (case No. 18), the Court observes
that his arrest report in 1990 refers to him as having been born in Mexico, an
assertion that is repeated in a second police report. Some two years later details in
his court record refer to him as a United States citizen born in Mexico. The Court
is not provided with any further details. The United States has not shown this
Court that it was aware of, or was engaged in active enquiry as to, alleged United
States nationality at the time of his arrest.
72. Mr. Tafoya (case No. 24) was listed on the police booking sheet as
having been born in Mexico. No further information is provided by the United
States as to why this was done and what, if any, further enquiries were being
made concerning the defendant’s nationality.
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73. Finally, the last of the seven persons referred to by the United States
in this group, Mr. Alvarez (case No. 30), was arrested in Texas on 20 June 1998.
Texas records identified him as a United States citizen. Within three days of his
arrest, however, the Texas authorities were informed that the Immigration and
Naturalization Service was holding investigations to determine whether, because
of a previous conviction, Mr. Alvarez was subject to deportation as a foreign
national. The Court has not been presented with evidence that rapid resolution
was sought as to the question of Mr. Alvarez’s nationality.
74. The Court concludes that Mexico has failed to prove the violation by
the United States of its obligations under Article 36, paragraph 1 (b), in the case
of Mr. Salcido (case No. 22), and his case will not be further commented upon.
On the other hand, as regards the other individuals who are alleged to have
claimed United States nationality on arrest, whose cases have been considered in
paragraphs 67 to 73 above, the argument of the United States cannot be upheld.
75. The question nonetheless remains as to whether, in each of the 45
cases referred to in paragraph 65 and of the six cases mentioned in paragraphs 67
to 73, the United States did provide the required information to the arrested
persons “without delay”. It is to that question that the Court now turns.
76. The Court has been provided with declarations from a number of the
Mexican nationals concerned that attest to their never being informed of their
rights under Article 36, paragraph 1 (b). The Court at the outset notes that, in 47
such cases, the United States nowhere challenges this fact of information not
being given. Nevertheless, in the case of Mr. Hernández (case No. 34), the United
States observes that
“Although the [arresting] officer did not ask Hernández Llanas whether
he wanted them to inform the Mexican Consulate of his arrest, it was certainly
not unreasonable for him to assume that an escaped convict would not want the
Consulate of the country from which he escaped notified of his arrest.”
The Court notes that the clear duty to provide consular information
under Article 36, paragraph 1 (b), does not invite assumptions as to what the
arrested person might prefer, as a ground for not informing him. It rather gives
the arrested person, once informed, the right to say he nonetheless does not wish
his consular post to be notified. It necessarily follows that in each of these 47
cases, the duty to inform “without delay” has been violated.
77. In four cases, namely Ayala (case No. 2), Esquivel (case No. 7),
Juárez (case No. 10) and Solache (case No. 47), some doubts remain as to
whether the information that was given was provided without delay. For these,
some examination of the term is thus necessary.
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78. This is a matter on which the Parties have very different views.
According to Mexico, the timing of the notice to the detained person “is critical
to the exercise of the rights provided by Article 36” and the phrase “without
delay” in paragraph 1 (b) requires “unqualified immediacy”. Mexico further
contends that, in view of the object and purpose of Article 36, which is to enable
“meaningful consular assistance” and the safeguarding of the vulnerability of
foreign nationals in custody, “consular notification . . . must occur immediately
upon detention and prior to any interrogation of the foreign detainee, so that the
consul may offer useful advice about the foreign legal system and provide
assistance in obtaining counsel before the foreign national makes any ill-informed
decisions or the State takes any action potentially prejudicial to his rights”.
79. Thus, in Mexico’s view, it would follow that in any case in which a
foreign national was interrogated before being informed of his rights under
Article 36, there would ipso facto be a breach of that Article, however rapidly
after the interrogation the information was given to the foreign national. Mexico
accordingly includes the case of Mr. Juárez among those where it claims
violation of Article 36, paragraph 1 (b), as he was interrogated before being
informed of his consular rights, some 40 hours after arrest.
80. Mexico has also invoked the travaux préparatoires of the Vienna
Convention in support of its interpretation of the requirement that the arrested
person be informed “without delay” of the right to ask that the consular post be
notified. In particular, Mexico recalled that the phrase proposed to the Conference
by the International Law Commission, “without undue delay”, was replaced by
the United Kingdom proposal to delete the word “undue”. The United Kingdom
representative had explained that this would avoid the implication that “some
delay was permissible” and no delegate had expressed dissent with the USSR and
Japanese statements that the result of the amendment would be to require
information “immediately”.
81. The United States disputed this interpretation of the phrase “without
delay”. In its view it did not mean “immediately, and before interrogation” and
such an understanding was supported neither by the terminology, nor by the
object and purpose of the Vienna Convention, nor by its travaux préparatoires. In
the booklet referred to in paragraph 63 above, the State Department explains that
“without delay” means “there should be no deliberate delay” and that the required
action should be taken “as soon as reasonably possible under the circumstances”.
It was normally to be expected that “notification to consular officers” would have
been made “within 24 to 72 hours of the arrest or detention”. The United States
further contended that such an interpretation of the words “without delay” would
be reasonable in itself and also allow a consistent interpretation of the phrase as it
occurs in each of three different occasions in Article 36, paragraph 1 (b). As for
the travaux préparatoires, they showed only that undue or deliberate delay had
been rejected as unacceptable.
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82. According to the United States, the purpose of Article 36 was to
facilitate the exercise of consular functions by a consular officer:
“The significance of giving consular information to a national is thus
limited . . . It is a procedural device that allows the foreign national to trigger the
related process of notification . . . [It] cannot possibly be fundamental to the
criminal justice process.”
83. The Court now addresses the question of the proper interpretation of
the expression “without delay” in the light of arguments put to it by the Parties.
The Court begins by noting that the precise meaning of “without delay”, as it is to
be understood in Article 36, paragraph 1 (b), is not defined in the Convention.
This phrase therefore requires interpretation according to the customary rules of
treaty interpretation reflected in Articles 31 and 32 of the Vienna Convention on
the Law of Treaties.
84. Article 1 of the Vienna Convention on Consular Relations, which
defines certain of the terms used in the Convention, offers no definition of the
phrase “without delay”. Moreover, in the different language versions of the
Convention various terms are employed to render the phrases “without delay” in
Article 36 and “immediately” in Article 14. The Court observes that dictionary
definitions, in the various languages of the Vienna Convention, offer diverse
meanings of the term “without delay” (and also of “immediately”). It is therefore
necessary to look elsewhere for an understanding of this term.
85. As for the object and purpose of the Convention, the Court observes
that Article 36 provides for consular officers to be free to communicate with
nationals of the sending State, to have access to them, to visit and speak with
them and to arrange for their legal representation. It is not envisaged, either in
Article 36, paragraph 1, or elsewhere in the Convention, that consular functions
entail a consular officer himself or herself acting as the legal representative or
more directly engaging in the criminal justice process. Indeed, this is confirmed
by the wording of Article 36, paragraph 2, of the Convention. Thus, neither the
terms of the Convention as normally understood, nor its object and purpose,
suggest that “without delay” is to be understood as “immediately upon arrest and
before interrogation”.
86. The Court further notes that, notwithstanding the uncertainties in the
travaux préparatoires, they too do not support such an interpretation. During the
diplomatic conference, the conference’s expert, former Special Rapporteur of the
International Law Commission, explained to the delegates that the words
“without undue delay” had been introduced by the Commission, after long
discussion in both the plenary and drafting committee, to allow for special
circumstances which might permit information as to consular notification not to
be given at once. Germany, the only one of two States to present an amendment,
proposed adding “but at latest within one month”. There was an extended
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discussion by many different delegates as to what such outer time-limit would be
acceptable. During that debate no delegate proposed “immediately”. The shortest
specific period suggested was by the United Kingdom, namely “promptly” and no
later than “48 hours” afterwards. Eventually, in the absence of agreement on a
precise time period, the United Kingdom’s other proposal to delete the word
“undue” was accepted as the position around which delegates could converge. It
is also of interest that there is no suggestion in the travaux that the phrase
“without delay” might have different meanings in each of the three sets of
circumstances in which it is used in Article 36, paragraph 1 (b).
87. The Court thus finds that “without delay” is not necessarily to be
interpreted as “immediately” upon arrest. It further observes that during the
Conference debates on this term, no delegate made any connection with the issue
of interrogation. The Court considers that the provision in Article 36, paragraph 1
(b), that the receiving State authorities “shall inform the person concerned
without delay of his rights” cannot be interpreted to signify that the provision of
such information must necessarily precede any interrogation, so that the
commencement of interrogation before the information is given would be a
breach of Article 36.
88. Although, by application of the usual rules of interpretation,
“without delay” as regards the duty to inform an individual under Article 36,
paragraph 1 (b), is not to be understood as necessarily meaning “immediately
upon arrest”, there is nonetheless a duty upon the arresting authorities to give that
information to an arrested person as soon as it is realized that the person is a
foreign national, or once there are grounds to think that the person is probably a
foreign national.
89. With one exception, no information as to entitlement to consular
notification was given in any of the cases cited in paragraph 77 within any of the
various time periods suggested by the delegates to the Conference on the Vienna
Convention, or by the United States itself (see paragraphs 81 and 86 above).
Indeed, the information was given either not at all or at periods very significantly
removed from the time of arrest. In the case of Mr. Juárez (case No. 10), the
defendant was informed of his consular rights 40 hours after his arrest. The Court
notes, however, that Mr. Juárez’s arrest report stated that he had been born in
Mexico; moreover, there had been indications of his Mexican nationality from the
time of his initial interrogation by agents of the Federal Bureau of Investigation
(FBI) following his arrest. It follows that Mr. Juárez’s Mexican nationality was
apparent from the outset of his detention by the United States authorities. In these
circumstances, in accordance with its interpretation of the expression “without
delay” (see paragraph 88 above), the Court concludes that the United States
violated the obligation incumbent upon it under Article 36, paragraph 1 (b), to
inform Mr. Juárez without delay of his consular rights. The Court notes that the
same finding was reached by a California Superior Court, albeit on different
grounds.
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90. The Court accordingly concludes that, with respect to each of the
individuals listed in paragraph 16, with the exception of Mr. Salcido (case No.
22; see paragraph 74 above), the United States has violated its obligation under
Article 36, paragraph 1 (b), of the Vienna Convention to provide information to
the arrested person.
91. As noted above, Article 36, paragraph 1 (b), contains three elements.
Thus far, the Court has been dealing with the right of an arrested person to be
informed that he may ask for his consular post to be notified. The Court now
turns to another aspect of Article 36, paragraph 1 (b). The Court finds the United
States is correct in observing that the fact that a Mexican consular post was not
notified under Article 36, paragraph 1 (b), does not of necessity show that the
arrested person was not informed of his rights under that provision. He may have
been informed and declined to have his consular post notified. The giving of the
information is relevant, however, for satisfying the element in Article 36,
paragraph 1 (b), on which the other two elements therein depend.
92. In only two cases has the United States claimed that the arrested
person was informed of his consular rights but asked for the consular post not to
be notified. These are Mr. Juárez (case No. 10) and Mr. Solache (case No. 47).
93. The Court is satisfied that when Mr. Juárez (case No. 10) was
informed of his consular rights 40 hours after his arrest (see paragraph 89) he
chose not to have his consular post notified. As regards Mr. Solache (case No.
47), however, it is not sufficiently clear to the Court, on the evidence before it,
that he requested that his consular post should not be notified. Indeed, the Court
has not been provided with any reasons as to why, if a request of non-notification
was made, the consular post was then notified some three months later.
94. In a further three cases, the United States alleges that the consular
post was formally notified of the detention of one of its Mexican nationals
without prior information to the individual as to his consular rights. These are Mr.
Covarrubias (case No. 6), Mr. Hernández (case No. 34) and Mr. Reyes (case No.
54). The United States further contends that the Mexican authorities were
contacted regarding the case of Mr. Loza (case No. 52).
95. The Court notes that, in the case of Mr. Covarrubias (case No. 6), the
consular authorities learned from third parties of his arrest shortly after it
occurred. Some 16 months later, a court-appointed interpreter requested that the
consulate intervene in the case prior to trial. It would appear doubtful whether an
interpreter can be considered a competent authority for triggering the interrelated
provisions of Article 36, paragraph 1 (b), of the Vienna Convention. In the case
of Mr. Reyes (case No. 34), the United States has simply told the Court that an
Oregon Department of Justice attorney had advised United States authorities that
both the District Attorney and the arresting detective advised the Mexican
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consular authorities of his arrest. No information is given as to when this
occurred, in relation to the date of his arrest. Mr. Reyes did receive assistance
before his trial. In these two cases, the Court considers that, even on the
hypothesis that the conduct of the United States had no serious consequences for
the individuals concerned, it did nonetheless constitute a violation of the
obligations incumbent upon the United States under Article 36, paragraph 1 (b).
96. In the case of Mr. Loza (case No. 52), a United States Congressman
from Ohio contacted the Mexican Embassy on behalf of Ohio prosecutors, some
four months after the accused’s arrest, “to enquire about the procedures for
obtaining a certified copy of Loza’s birth certificate”. The Court has not been
provided with a copy of the Congressman’s letter and is therefore unable to
ascertain whether it explained that Mr. Loza had been arrested. The response
from the Embassy (which is also not included in the documentation provided to
the Court) was passed by the Congressman to the prosecuting attorney, who then
asked the Civil Registry of Guadalajara for a copy of the birth certificate. This
request made no specific mention of Mr. Loza’s arrest. Mexico contends that its
consulate was never formally notified of Mr. Loza’s arrest, of which it only
became aware after he had been convicted and sentenced to death. Mexico
includes the case of Mr. Loza among those in which the United States was in
breach of its obligation of consular notification. Taking account of all these
elements, and in particular of the fact that the Embassy was contacted four
months after the arrest, and that the consular post became aware of the
defendant’s detention only after he had been convicted and sentenced, the Court
concludes that in the case of Mr. Loza the United States violated the obligation of
consular notification without delay incumbent upon it under Article 36, paragraph
1 (b).
97. Mr. Hernández (case No. 34) was arrested in Texas on Wednesday
15 October 1997. The United States authorities had no reason to believe he might
have American citizenship. The consular post was notified the following
Monday, that is five days (corresponding to only three working days) thereafter.
The Court finds that, in the circumstances, the United States did notify the
consular post without delay, in accordance with its obligation under Article 36,
paragraph 1 (b).
98. In the first of its final submissions, Mexico also asks the Court to
find that the violations it ascribes to the United States in respect of Article 36,
paragraph 1 (b), have also deprived “Mexico of its right to provide consular
protection and the 52 nationals’ right to receive such protection as Mexico would
provide under Article 36 (1) (a) and (c) of the Convention”.
99. The relationship between the three subparagraphs of Article 36,
paragraph 1, has been described by the Court in its Judgment in the LaGrand case
(I.C.J. Judgments 2001, p. 492, para. 74) as “an interrelated régime”. The legal
conclusions to be drawn from that interrelationship necessarily depend upon the
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facts of each case. In the LaGrand case, the Court found that the failure for 16
years to inform the brothers of their right to have their consul notified effectively
prevented the exercise of other rights that Germany might have chosen to
exercise under subparagraphs (a) and (c).
100. It is necessary to revisit the interrelationship of the three
subparagraphs of Article 36, paragraph 1, in the light of the particular facts and
circumstances of the present case.
101. The Court would first recall that, in the case of Mr. Juárez (case
No. 10) (see paragraph 93 above), when the defendant was informed of his rights,
he declined to have his consular post notified. Thus in this case there was no
violation of either subparagraph (a) or subparagraph (c) of Article 36, paragraph
1.
102. In the remaining cases, because of the failure of the United States to
act in conformity with Article 36, paragraph 1 (b), Mexico was in effect
precluded (in some cases totally, and in some cases for prolonged periods of
time) from exercising its right under paragraph 1 (a) to communicate with its
nationals and have access to them. As the Court has already had occasion to
explain, it is immaterial whether Mexico would have offered consular assistance,
“or whether a different verdict would have been rendered. It is sufficient that the
Convention conferred these rights” (I.C.J. Reports 2001, p. 492, para. 74), which
might have been acted upon.
103. The same is true, pari passu, of certain rights identified in
subparagraph (c): “consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, and to converse and
correspond with him . . .”
104. On the other hand, and on the particular facts of this case, no such
generalized answer can be given as regards a further entitlement mentioned in
subparagraph (c), namely, the right of consular officers “to arrange for [the] legal
representation” of the foreign national. Mexico has laid much emphasis in this
litigation upon the importance of consular officers being able to arrange for such
representation before and during trial, and especially at sentencing, in cases in
which a severe penalty may be imposed. Mexico has further indicated the
importance of any financial or other assistance that consular officers may provide
to defence counsel, inter alia for investigation of the defendant’s family
background and mental condition, when such information is relevant to the case.
The Court observes that the exercise of the rights of the sending State under
Article 36, paragraph 1 (c), depends upon notification by the authorities of the
receiving State. It may be, however, that information drawn to the attention of the
sending State by other means may still enable its consular officers to assist in
arranging legal representation for its national. In the following cases, the Mexican
consular authorities learned of their national’s detention in time to provide such
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assistance, either through notification by United States authorities (albeit
belatedly in terms of Article 36, paragraph 1 (b)) or through other channels:
Benavides (case No. 3); Covarrubias (case No. 6); Esquivel (case No. 7); Hoyos
(case No. 9); Mendoza (case No. 17); Ramírez (case No. 20); Sánchez (case No.
23); Verano (case No. 27); Zamudio (case No. 29); Gómez (case No. 33);
Hernández (case No. 34); Ramírez (case No. 41); Rocha (case No. 42); Solache
(case No. 47); Camargo (case No. 49) and Reyes (case No. 54).
105. In relation to Mr. Manríquez (case No. 14), the Court lacks precise
information as to when his consular post was notified. It is merely given to
understand that it was two years prior to conviction, and that Mr. Manríquez
himself had never been informed of his consular rights. There is also divergence
between the Parties in regard to the case of Mr. Fuentes (case No. 15), where
Mexico claims it became aware of his detention during trial and the United States
says this occurred during jury selection, prior to the actual commencement of the
trial. In the case of Mr. Arias (case No. 44), the Mexican authorities became
aware of his detention less than one week before the commencement of the trial.
In those three cases, the Court concludes that the United States violated its
obligations under Article 36, paragraph 1 (c).
106. On this aspect of the case, the Court thus concludes:
(1) that the United States committed breaches of the obligation
incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention to
inform detained Mexican nationals of their rights under that paragraph, in the
case of the following 51 individuals: Avena (case No. 1), Ayala (case No. 2),
Benavides (case No. 3), Carrera (case No. 4), Contreras (case No. 5), Covarrubias
(case No. 6), Esquivel (case No. 7), Gómez (case No. 8), Hoyos (case No. 9),
Juárez (case No. 10), López (case No. 11), Lupercio (case No. 12), Maciel (case
No. 13), Manríquez (case No. 14), Fuentes (case No. 15), Martínez (case No. 16),
Mendoza (case No. 17), Ochoa (case No. 18), Parra (case No. 19), Ramírez (case
No. 20), Salazar (case No. 21), Sánchez (case No. 23), Tafoya (case No. 24),
Valdez (case No. 25), Vargas (case No. 26), Verano (case No. 27), Zamudio (case
No. 29), Alvarez (case No. 30), Fierro (case No. 31), García (case No. 32),
Gómez (case No. 33), Hernández (case No. 34), Ibarra (case No. 35), Leal (case
No. 36), Maldonado (case No. 37), Medellín (case No. 38), Moreno (case No.
39), Plata (case No. 40), Ramírez (case No. 41), Rocha (case No. 42), Regalado
(case No. 43), Arias (case No. 44), Caballero (case No. 45), Flores (case No. 46),
Solache (case No. 47), Fong (case No. 48), Camargo (case No. 49), Pérez (case
No. 51), Loza (case No. 52), Torres (case No. 53) and Reyes (case No. 54);
(2) that the United States committed breaches of the obligation
incumbent upon it under Article 36, paragraph 1 (b) to notify the Mexican
consular post of the detention of the Mexican nationals listed in subparagraph (1)
above, except in the cases of Mr. Juárez (No. 10) and Mr. Hernández (No. 34);
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(3) that by virtue of its breaches of Article 36, paragraph 1 (b), as
described in subparagraph (2) above, the United States also violated the
obligation incumbent upon it under Article 36, paragraph 1 (a), of the Vienna
Convention to enable Mexican consular officers to communicate with and have
access to their nationals, as well as its obligation under paragraph 1 (c) of that
Article regarding the right of consular officers to visit their detained nationals;
(4) that the United States, by virtue of these breaches of Article 36,
paragraph 1 (b), also violated the obligation incumbent upon it under paragraph 1
(c) of that Article to enable Mexican consular officers to arrange for legal
representation of their nationals in the case of the following individuals: Avena
(case No. 1), Ayala (case No. 2), Carrera (case No. 4), Contreras (case No. 5),
Gómez (case No. 8), López (case No. 11), Lupercio (case No. 12), Maciel (case
No. 13), Manríquez (case No. 14), Fuentes (case No. 15), Martínez (case No. 16),
Ochoa (case No. 18), Parra (case No. 19), Salazar (case No. 21), Tafoya (case No.
24), Valdez (case No. 25), Vargas (case No. 26), Alvarez (case No. 30), Fierro
(case No. 31), García (case No. 32), Ibarra (case No. 35), Leal (case No. 36),
Maldonado (case No. 37), Medellín (case No. 38), Moreno (case No. 39), Plata
(case No. 40), Regalado (case No. 43), Arias (case No. 44), Caballero (case No.
45), Flores (case No. 46), Fong (case No. 48), Pérez (case No. 51), Loza (case
No. 52) and Torres (case No. 53).
*
Article 36, paragraph 2
107. In its third final submission Mexico asks the Court to adjudge and
declare that “the United States violated its obligations under Article 36 (2) of the
Vienna Convention by failing to provide meaningful and effective review and
reconsideration of convictions and sentences impaired by a violation of Article 36
(1)”.
108. Article 36, paragraph 2, provides:
“The rights referred to in paragraph 1 of this article shall be exercised in
conformity with the laws and regulations of the receiving State, subject to the
proviso, however, that the said laws and regulations must enable full effect to be
given to the purposes for which the rights accorded under this article are
intended.”
109. In this connection, Mexico has argued that the United States
“By applying provisions of its municipal law to defeat or foreclose
remedies for the violation of rights conferred by Article 36 • thus failing to
provide meaningful review and reconsideration of severe sentences imposed in
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proceedings that violated Article 36 • . . . has violated, and continues to violate,
the Vienna Convention.”
More specifically, Mexico contends that:
“The United States uses several municipal legal doctrines to prevent
finding any legal effect from the violations of Article 36. First, despite this
Court’s clear analysis in LaGrand, U.S. courts, at both the state and federal level,
continue to invoke default doctrines to bar any review of Article 36 violations •
even when the national had been unaware of his rights to consular notification
and communication and thus his ability to raise their violation as an issue at trial,
due to the competent authorities’ failure to comply with Article 36.”
110. Against this contention by Mexico, the United States argues that:
“the criminal justice systems of the United States address all errors in
process through both judicial and executive clemency proceedings, relying upon
the latter when rules of default have closed out the possibility of the former. That
is, the ‘laws and regulations’ of the United States provide for the correction of
mistakes that may be relevant to a criminal defendant to occur through a
combination of judicial review and clemency. These processes together, working
with other competent authorities, give full effect to the purposes for which Article
36 (1) is intended, in conformity with Article 36 (2). And, insofar as a breach of
Article 36 (1) has occurred, these procedures satisfy the remedial function of
Article 36 (2) by allowing the United States to provide review and
reconsideration of convictions and sentences consistent with LaGrand.”
111. The “procedural default” rule in United States law has already been
brought to the attention of the Court in the LaGrand case. The following brief
definition of the rule was provided by Mexico in its Memorial in this case and has
not been challenged by the United States: “a defendant who could have raised,
but fails to raise, a legal issue at trial will generally not be permitted to raise it in
future proceedings, on appeal or in a petition for a writ of habeas corpus”.
The rule requires exhaustion of remedies, inter alia, at the state level and
before a habeas corpus motion can be filed with federal courts. In the LaGrand
case, the rule in question was applied by United States federal courts; in the
present case, Mexico also complains of the application of the rule in certain state
courts of criminal appeal.
112. The Court has already considered the application of the “procedural
default” rule, alleged by Mexico to be a hindrance to the full implementation of
the international obligations of the United States under Article 36, in the LaGrand
case, when the Court addressed the issue of its implications for the application of
Article 36, paragraph 2, of the Vienna Convention. The Court emphasized that “a
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distinction must be drawn between that rule as such and its specific application in
the present case”. The Court stated:
“In itself, the rule does not violate Article 36 of the Vienna Convention.
The problem arises when the procedural default rule does not allow the detained
individual to challenge a conviction and sentence by claiming, in reliance on
Article 36, paragraph 1, of the Convention, that the competent national authorities
failed to comply with their obligation to provide the requisite consular
information ‘without delay’, thus preventing the person from seeking and
obtaining consular assistance from the sending State.” (I.C.J. Reports 2001, p.
497, para. 90.) On this basis, the Court concluded that “the procedural default
rule prevented counsel for the LaGrands to effectively challenge their convictions
and sentences other than on United States constitutional grounds” (ibid., para.
91). This statement of the Court seems equally valid in relation to the present
case, where a number of Mexican nationals have been placed exactly in such a
situation.
113. The Court will return to this aspect below, in the context of
Mexico’s claims as to remedies. For the moment, the Court simply notes that the
procedural default rule has not been revised, nor has any provision been made to
prevent its application in cases where it has been the failure of the United States
itself to inform that may have precluded counsel from being in a position to have
raised the question of a violation of the Vienna Convention in the initial trial. It
thus remains the case that the procedural default rule may continue to prevent
courts from attaching legal significance to the fact, inter alia, that the violation of
the rights set forth in Article 36, paragraph 1, prevented Mexico, in a timely
fashion, from retaining private counsel for certain nationals and otherwise
assisting in their defence. In such cases, application of the procedural default rule
would have the effect of preventing “full effect [from being] given to the
purposes for which the rights accorded under this article are intended”, and thus
violate paragraph 2 of Article 36. The Court notes moreover that in several of the
cases cited in Mexico’s final submissions the procedural default rule has already
been applied, and that in others it could be applied at subsequent stages in the
proceedings. However, in none of the cases, save for the three mentioned in
paragraph 114 below, have the criminal proceedings against the Mexican
nationals concerned already reached a stage at which there is no further
possibility of judicial re-examination of those cases; that is to say, all possibility
is not yet excluded of “review and reconsideration” of conviction and sentence, as
called for in the LaGrand case, and as explained further in paragraphs 128 and
following below. It would therefore be premature for the Court to conclude at this
stage that, in those cases, there is already a violation of the obligations under
Article 36, paragraph 2, of the Vienna Convention.
114. By contrast, the Court notes that in the case of three Mexican
nationals, Mr. Fierro (case No. 31), Mr. Moreno (case No. 39), and Mr. Torres
(case No. 53), conviction and sentence have become final. Moreover, in the case
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of Mr. Torres the Oklahoma Court of Criminal Appeals has set an execution date
(see paragraph 21 above, in fine). The Court must therefore conclude that, in
relation to these three individuals, the United States is in breach of the obligations
incumbent upon it under Article 36, paragraph 2, of the Vienna Convention.
**
Legal consequences of the breach
115. Having concluded that in most of the cases brought before the
Court by Mexico in the 52 instances, there has been a failure to observe the
obligations prescribed by Article 36, paragraph 1 (b), of the Vienna Convention,
the Court now proceeds to the examination of the legal consequences of such a
breach and of what legal remedies should be considered for the breach.
116. Mexico in its fourth, fifth and sixth submissions asks the Court to
adjudge and declare:
“(4) that pursuant to the injuries suffered by Mexico in its own right and
in the exercise of diplomatic protection of its nationals, Mexico is entitled to full
reparation for these injuries in the form of restitutio in integrum;
(5) that this restitution consists of the obligation to restore the status quo
ante by annulling or otherwise depriving of full force or effect the conviction and
sentences of all 52 Mexican nationals; [and]
(6) that this restitution also includes the obligation to take all measures
necessary to ensure that a prior violation of Article 36 shall not affect the
subsequent proceedings.”
117. In support of its fourth and fifth submissions, Mexico argues that
“It is well-established that the primary form of reparation available to a State
injured by an internationally wrongful act is restitutio in integrum”, and that “The
United States is therefore obliged to take the necessary action to restore the status
quo ante in respect of Mexico’s nationals detained, tried, convicted and sentenced
in violation of their internationally recognized rights”. To restore the status quo
ante, Mexico contends that “restitution here must take the form of annulment of
the convictions and sentences that resulted from the proceedings tainted by the
Article 36 violations”, and that “It follows from the very nature of restitutio that,
when a violation of an international obligation is manifested in a judicial act, that
act must be annulled and thereby deprived of any force or effect in the national
legal system”. Mexico therefore asks in its submissions that the convictions and
sentences of the 52 Mexican nationals be annulled, and that, in any future
criminal proceedings against these 52 Mexican nationals, evidence obtained in
breach of Article 36 of the Vienna Convention be excluded.
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118. The United States on the other hand argues:
“LaGrand’s holding calls for the United States to provide, in each case,
‘review and reconsideration’ that ‘takes account of’ the violation, not ‘review and
reversal’, not across-the-board exclusions of evidence or nullification of
convictions simply because a breach of Article 36 (1) occurred and without
regard to its effect upon the conviction and sentence and, not . . . ‘a precise,
concrete, stated result: to re-establish the status quo ante’”.
119. The general principle on the legal consequences of the commission
of an internationally wrongful act was stated by the Permanent Court of
International Justice in the Factory at Chorzów case as follows: “It is a principle
of international law that the breach of an engagement involves an obligation to
make reparation in an adequate form.” (Factory at Chorzów, Jurisdiction, 1927,
P.C.I.J., Series A, No. 9, p. 21.) What constitutes “reparation in an adequate
form” clearly varies depending upon the concrete circumstances surrounding each
case and the precise nature and scope of the injury, since the question has to be
examined from the viewpoint of what is the “reparation in an adequate form” that
corresponds to the injury. In a subsequent phase of the same case, the Permanent
Court went on to elaborate on this point as follows:
“The essential principle contained in the actual notion of an illegal act •
a principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals • is that reparation must, as far as
possible, wipe out all the consequences of the illegal act and reestablish the
situation which would, in all probability, have existed if that act had not been
committed.” (Factory at Chorzów, Merits, 1928, P.C.I.J., Series A, No. 17, p. 47.)
120. In the LaGrand case the Court made a general statement on the
principle involved as follows:
“The Court considers in this respect that if the United States,
notwithstanding its commitment [to ensure implementation of the specific
measures adopted in performance of its obligations under Article 36, paragraph 1
(b)], should fail in its obligation of consular notification to the detriment of
German nationals, an apology would not suffice in cases where the individuals
concerned have been subjected to prolonged detention or convicted and sentenced
to severe penalties. In the case of such a conviction and sentence, it would be
incumbent upon the United States to allow the review and reconsideration of the
conviction and sentence by taking account of the violation of the rights set forth
in the Convention. This obligation can be carried out in various ways. The choice
of means must be left to the United States.” (I.C.J. Reports 2001, pp. 513-514,
para. 125.)
121. Similarly, in the present case the Court’s task is to determine what
would be adequate reparation for the violations of Article 36. It should be clear
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from what has been observed above that the internationally wrongful acts
committed by the United States were the failure of its competent authorities to
inform the Mexican nationals concerned, to notify Mexican consular posts and to
enable Mexico to provide consular assistance. It follows that the remedy to make
good these violations should consist in an obligation on the United States to
permit review and reconsideration of these nationals’ cases by the United States
courts, as the Court will explain further in paragraphs 128 to 134 below, with a
view to ascertaining whether in each case the violation of Article 36 committed
by the competent authorities caused actual prejudice to the defendant in the
process of administration of criminal justice.
122. The Court reaffirms that the case before it concerns Article 36 of
the Vienna Convention and not the correctness as such of any conviction or
sentencing. The question of whether the violations of Article 36, paragraph 1, are
to be regarded as having, in the causal sequence of events, ultimately led to
convictions and severe penalties is an integral part of criminal proceedings before
the courts of the United States and is for them to determine in the process of
review and reconsideration. In so doing, it is for the courts of the United States to
examine the facts, and in particular the prejudice and its causes, taking account of
the violation of the rights set forth in the Convention.
123. It is not to be presumed, as Mexico asserts, that partial or total
annulment of conviction or sentence provides the necessary and sole remedy. In
this regard, Mexico cites the recent Judgment of this Court in the case concerning
the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), in which the “Court ordered the cancellation of an arrest warrant issued
by a Belgian judicial official in violation of the international immunity of the
Congo Minister for Foreign Affairs”. However, the present case has clearly to be
distinguished from the Arrest Warrant case. In that case, the question of the
legality under international law of the act of issuing the arrest warrant against the
Congolese Minister for Foreign Affairs by the Belgian judicial authorities was
itself the subject-matter of the dispute. Since the Court found that act to be in
violation of international law relating to immunity, the proper legal consequence
was for the Court to order the cancellation of the arrest warrant in question (I.C.J.
Reports 2002, p. 33). By contrast, in the present case it is not the convictions and
sentences of the Mexican nationals which are to be regarded as a violation of
international law, but solely certain breaches of treaty obligations which preceded
them.
124. Mexico has further contended that the right to consular notification
and consular communication under the Vienna Convention is a fundamental
human right that constitutes part of due process in criminal proceedings and
should be guaranteed in the territory of each of the Contracting Parties to the
Vienna Convention; according to Mexico, this right, as such, is so fundamental
that its infringement will ipso facto produce the effect of vitiating the entire
process of the criminal proceedings conducted in violation of this fundamental
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right. Whether or not the Vienna Convention rights are human rights is not a
matter that this Court need decide. The Court would, however, observe that
neither the text nor the object and purpose of the Convention, nor any indication
in the travaux préparatoires, support the conclusion that Mexico draws from its
contention in that regard.
125. For these reasons, Mexico’s fourth and fifth submissions cannot be
upheld.
126. The reasoning of the Court on the fifth submission of Mexico is
equally valid in relation to the sixth submission of Mexico. In elaboration of its
sixth submission, Mexico contends that “As an aspect of restitutio in integrum,
Mexico is also entitled to an order that in any subsequent criminal proceedings
against the nationals, statements and confessions obtained prior to notification to
the national of his right to consular assistance be excluded”. Mexico argues that
“The exclusionary rule applies in both common law and civil law jurisdictions
and requires the exclusion of evidence that is obtained in a manner that violates
due process obligations”, and on this basis concludes that
“The status of the exclusionary rule as a general principle of law permits
the Court to order that the United States is obligated to apply this principle in
respect of statements and confessions given to United States law enforcement
officials prior to the accused Mexican nationals being advised of their consular
rights in any subsequent criminal proceedings against them.”
127. The Court does not consider that it is necessary to enter into an
examination of the merits of the contention advanced by Mexico that the
“exclusionary rule” is “a general principle of law under Article 38(1) (c) of the
Statute” of the Court. The issue raised by Mexico in its sixth submission relates
to the question of what legal consequences flow from the breach of the
obligations under Article 36, paragraph 1 • a question which the Court has
already sufficiently discussed above in relation to the fourth and the fifth
submissons of Mexico. The Court is of the view that this question is one which
has to be examined under the concrete circumstances of each case by the United
States courts concerned in the process of their review and reconsideration. For
this reason, the sixth submission of Mexico cannot be upheld.
128. While the Court has rejected the fourth, fifth and sixth submissions
of Mexico relating to the remedies for the breaches by the United States of its
international obligations under Article 36 of the Vienna Convention, the fact
remains that such breaches have been committed, as the Court has found, and it is
thus incumbent upon the Court to specify what remedies are required in order to
redress the injury done to Mexico and to its nationals by the United States
through non-compliance with those international obligations. As has already been
observed in paragraph 120, the Court in the LaGrand Judgment stated the general
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principle to be applied in such cases by way of a remedy to redress an injury of
this kind (I.C.J. Reports 2001, pp. 513-514, para. 125).
129. In this regard, Mexico’s seventh submission also asks the Court to
adjudge and declare:
“That to the extent that any of the 52 convictions or sentences are not
annulled, the United States shall provide, by means of its own choosing,
meaningful and effective review and reconsideration of the convictions and
sentences of the 52 nationals, and that this obligation cannot be satisfied by
means of clemency proceedings or if any municipal law rule or doctrine [that fails
to attach legal significance to an Article 36 (1) violation] is applied.”
130. On this question of “review and reconsideration”, the United States
takes the position that it has indeed conformed its conduct to the LaGrand
Judgment. In a further elaboration of this point, the United States argues that
“[t]he Court said in LaGrand that the choice of means for allowing the review and
reconsideration it called for ‘must be left’ to the United States”, but that “Mexico
would not leave this choice to the United States but have the Court undertake the
review instead and decide at once that the breach requires the conviction and
sentence to be set aside in each case”.
131. In stating in its Judgment in the LaGrand case that “the United
States of America, by means of its own choosing, shall allow the review and
reconsideration of the conviction and sentence” (I.C.J. Reports 2001, p. 516, para.
128; emphasis added), the Court acknowledged that the concrete modalities for
such review and reconsideration should be left primarily to the United States. It
should be underlined, however, that this freedom in the choice of means for such
review and reconsideration is not without qualification: as the passage of the
Judgment quoted above makes abundantly clear, such review and reconsideration
has to be carried out “by taking account of the violation of the rights set forth in
the Convention” (I.C.J. Reports 2001, p. 514, para. 125), including, in particular,
the question of the legal consequences of the violation upon the criminal
proceedings that have followed the violation.
132. The United States argues (1) “that the Court’s decision in LaGrand
in calling for review and reconsideration called for a process to re-examine a
conviction and sentence in light of a breach of Article 36”; (2) that “in calling for
a process of review, the Court necessarily implied that one legitimate result of
that process might be a conclusion that the conviction and sentence should
stand”; and (3) “that the relief Mexico seeks in this case is flatly inconsistent with
the Judgment in LaGrand: it seeks precisely the award of a substantive outcome
that the LaGrand Court declined to provide”.
133. However, the Court wishes to point out that the current situation in
the United States criminal procedure, as explained by the Agent at the hearings, is
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that “If the defendant alleged at trial that a failure of consular information
resulted in harm to a particular right essential to a fair trial, an appeals court can
review how the lower court handled that claim of prejudice”, but that “If the
foreign national did not raise his Article 36 claim at trial, he may face procedural
constraints [i.e., the application of the procedural default rule] on raising that
particular claim in direct or collateral judicial appeals” (emphasis added). As a
result, a claim based on the violation of Article 36, paragraph 1, of the Vienna
Convention, however meritorious in itself, could be barred in the courts of the
United States by the operation of the procedural default rule (see paragraph 111
above).
134. It is not sufficient for the United States to argue that “[w]hatever
label [the Mexican defendant] places on his claim, his right . . . must and will be
vindicated if it is raised in some form at trial” (emphasis added), and that
“In that way, even though a failure to label the complaint as a breach of
the Vienna Convention may mean that he has technically speaking forfeited his
right to raise this issue as a Vienna Convention claim, on appeal that failure
would not bar him from independently asserting a claim that he was prejudiced
because he lacked this critical protection needed for a fair trial.” (Emphasis
added.)
The crucial point in this situation is that, by the operation of the
procedural default rule as it is applied at present, the defendant is effectively
barred from raising the issue of the violation of his rights under Article 36 of the
Vienna Convention and is limited to seeking the vindication of his rights under
the United States Constitution.
*
135. Mexico, in the latter part of its seventh submission, has stated that
“this obligation [of providing review and reconsideration] cannot be satisfied by
means of clemency proceedings”. Mexico elaborates this point by arguing first of
all that “the United States’s reliance on clemency proceedings is wholly
inconsistent with its obligation to provide a remedy, as that obligation was found
by this Court in LaGrand”. More specifically, Mexico contends:
“First, it is clear that the Court’s direction to the United States in
LaGrand clearly contemplated that ‘review and reconsideration’ would be carried
out by judicial procedures . . .
Second, the Court was fully aware that the LaGrand brothers had
received a clemency hearing, during which the Arizona Pardons Board took into
account the violation of their consular rights. Accordingly, the Court determined
in LaGrand that clemency review alone did not constitute the required ‘review
and reconsideration’ . . .
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Finally, the Court specified that the United States must ‘allow the review
and reconsideration of the conviction and sentence by taking account of the
violation of the rights set forth in the Convention’ . . . it is a basic matter of U.S.
criminal procedural law that courts review convictions; clemency panels do not.
With the rare exception of pardons based on actual innocence, the focus of capital
clemency review is on the propriety of the sentence and not on the underlying
conviction.” Furthermore, Mexico argues that the clemency process is in itself an
ineffective remedy to satisfy the international obligations of the United States. It
concludes: “clemency review is standardless, secretive, and immune from judicial
oversight”. Finally, in support of its contention, Mexico argues that
“the failure of state clemency authorities to pay heed to the intervention
of the U.S. Department of State in cases of death-sentenced Mexican nationals
refutes the [United States] contention that clemency review will provide
meaningful consideration of the violations of rights conferred under Article 36”.
136. Against this contention of Mexico, the United States claims that it
“gives ‘full effect’ to the ‘purposes for which the rights accorded under [Article
36, paragraph 1,] are intended’ through executive clemency”. It argues that “[t]he
clemency process . . . is well suited to the task of providing review and
reconsideration”. The United States explains that “Clemency . . . is more than a
matter of grace; it is part of the overall scheme for ensuring justice and fairness in
the legal process” and that “Clemency procedures are an integral part of the
existing ‘laws and regulations’ of the United States through which errors are
addressed”.
137. Specifically in the context of the present case, the United States
contends that the following two points are particularly noteworthy:
“First, these clemency procedures allow for broad participation by
advocates of clemency, including an inmate’s attorney and the sending state’s
consular officer . . . Second, these clemency officials are not bound by principles
of procedural default, finality, prejudice standards, or any other limitations on
judicial review. They may consider any facts and circumstances that they deem
appropriate and relevant, including specifically Vienna Convention claims”.
138. The Court would emphasize that the “review and reconsideration”
prescribed by it in the LaGrand case should be effective. Thus it should “tak[e]
account of the violation of the rights set forth in [the] Convention” (I.C.J. Reports
2001, p. 516, para. 128 (7)) and guarantee that the violation and the possible
prejudice caused by that violation will be fully examined and taken into account
in the review and reconsideration process. Lastly, review and reconsideration
should be both of the sentence and of the conviction.
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139. Accordingly, in a situation of the violation of rights under Article
36, paragraph 1, of the Vienna Convention, the defendant raises his claim in this
respect not as a case of “harm to a particular right essential to a fair trial” • a
concept relevant to the enjoyment of due process rights under the United States
Constitution • but as a case involving the infringement of his rights under Article
36, paragraph 1. The rights guaranteed under the Vienna Convention are treaty
rights which the United States has undertaken to comply with in relation to the
individual concerned, irrespective of the due process rights under United States
constitutional law. In this regard, the Court would point out that what is crucial in
the review and reconsideration process is the existence of a procedure which
guarantees that full weight is given to the violation of the rights set forth in the
Vienna Convention, whatever may be the actual outcome of such review and
reconsideration.
140. As has been explained in paragraphs 128 to 134 above, the Court is of the
view that, in cases where the breach of the individual rights of Mexican nationals
under Article 36, paragraph 1 (b), of the Convention has resulted, in the sequence
of judicial proceedings that has followed, in the individuals concerned being
subjected to prolonged detention or convicted and sentenced to severe penalties,
the legal consequences of this breach have to be examined and taken into account
in the course of review and reconsideration. The Court considers that it is the
judicial process that is suited to this task.
141. The Court in the LaGrand case left to the United States the choice
of means as to how review and reconsideration should be achieved, especially in
the light of the procedural default rule. Nevertheless, the premise on which the
Court proceeded in that case was that the process of review and reconsideration
should occur within the overall judicial proceedings relating to the individual
defendant concerned.
142. As regards the clemency procedure, the Court notes that this
performs an important function in the administration of criminal justice in the
United States and is “the historic remedy for preventing miscarriages of justice
where judicial process has been exhausted” (Herrera v. Collins, 506 U.S. 390
(1993) at pp. 411-412). The Court accepts that executive clemency, while not
judicial, is an integral part of the overall scheme for ensuring justice and fairness
in the legal what is at issue in the present case is not whether executive clemency
as an institution is or is not an integral part of the “existing laws and regulations
of the United States”, but whether the clemency process as practised within the
criminal justice systems of different states in the United States can, in and of
itself, qualify as an appropriate means for undertaking the effective “review and
reconsideration of the conviction and sentence by taking account of the violation
of the rights set forth in the Convention”, as the Court prescribed in the LaGrand
Judgment (I.C.J. Reports 2001, p. 514, para. 125).
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143. It may be true, as the United States argues, that in a number of
cases “clemency in fact results in pardons of convictions as well as commutations
of sentences”. In that sense and to that extent, it might be argued that the facts
demonstrated by the United States testify to a degree of effectiveness of the
clemency procedures as a means of relieving defendants on death row from
execution. The Court notes, however, that the clemency process, as currently
practised within the United States criminal justice system, does not appear to
meet the requirements described in paragraph 138 above and that it is therefore
not sufficient in itself to serve as an appropriate means of “review and
reconsideration” as envisaged by the Court in the LaGrand case. The Court
considers nevertheless that appropriate clemency procedures can supplement
judicial review and reconsideration, in particular where the judicial system has
failed to take due account of the violation of the rights set forth in the Vienna
Convention, as has occurred in the case of the three Mexican nationals referred to
in paragraph 114 above.
*
144. Finally, the Court will consider the eighth submission of Mexico, in
which it asks the Court to adjudge and declare:
“That the [United States] shall cease its violations of Article 36 of the
Vienna Convention with regard to Mexico and its 52 nationals and shall provide
appropriate guarantees and assurances that it shall take measures sufficient to
achieve increased compliance with Article 36 (1) and to ensure compliance with
Article 36 (2).”
145. In this respect, Mexico recognizes the efforts by the United States
to raise awareness of consular assistance rights, through the distribution of
pamphlets and pocket cards and by the conduct of training programmes, and that
the measures adopted by the United States to that end were noted by the Court in
its decision in the LaGrand case (I.C.J. Reports 2001, pp. 511-513, paras. 121,
123-124). Mexico, however, notes with regret that “the United States program,
whatever its components, has proven ineffective to prevent the regular and
continuing violation by its competent authorities of consular notification and
assistance rights guaranteed by Article 36”.
146. In particular, Mexico claims in relation to the violation of the
obligations under Article 36, paragraph 1, of the Vienna Convention:
“First, competent authorities of the United States regularly fail to
provide the timely notification required by Article 36(1)(b) and thereby to [sic]
frustrate the communication and access contemplated by Article 36(1)(a) and the
assistance contemplated by Article 36(1)(c). These violations continue
notwithstanding the Court’s judgment in LaGrand and the program described
there.
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Mexico has demonstrated, moreover, that the pattern of regular
noncompliance continues. During the first half of 2003, Mexico has identified at
least one hundred cases in which Mexican nationals have been arrested by
competent authorities of the United States for serious felonies but not timely
notified of their consular notification rights.”
Furthermore, in relation to the violation of the obligations under Article
36, paragraph 2, of the Vienna Convention, Mexico claims:
“Second, courts in the United States continue to apply doctrines of
procedural default and non-retroactivity that prevent those courts from reaching
the merits of Vienna Convention claims, and those courts that have addressed the
merits of those claims (because no procedural bar applies) have repeatedly held
that no remedy is available for a breach of the obligations of Article 36 . . .
Likewise, the United States’ reliance on clemency proceedings to meet
LaGrand’s requirement of review and reconsideration represents a deliberate
decision to allow these legal rules and doctrines to continue to have their
inevitable effect. Hence, the United States continues to breach Article 36(2) by
failing to give full effect to the purposes for which the rights accorded under
Article 36 are intended.”
147. The United States contradicts this contention of Mexico by
claiming that “its efforts to improve the conveyance of information about
consular notification are continuing unabated and are achieving tangible results”.
It contends that Mexico “fails to establish a ‘regular and continuing’ pattern of
breaches of Article 36 in the wake of LaGrand”.
148. Mexico emphasizes the necessity of requiring the cessation of the
wrongful acts because, it alleges, the violation of Article 36 with regard to
Mexico and its 52 nationals still continues. The Court considers, however, that
Mexico has not established a continuing violation of Article 36 of the Vienna
Convention with respect to the 52 individuals referred to in its final submissions;
it cannot therefore uphold Mexico’s claim seeking cessation. The Court would
moreover point out that, inasmuch as these 52 individual cases are at various
stages of criminal proceedings before the United States courts, they are in the
state of pendente lite; and the Court has already indicated in respect of them what
it regards as the appropriate remedy, namely review and reconsideration by
reference to the breach of the Vienna Convention.
149. The Mexican request for guarantees of non-repetition is based on
its contention that beyond these 52 cases there is a “regular and continuing”
pattern of breaches by the United States of Article 36. In this respect, the Court
observes that there is no evidence properly before it that would establish a general
pattern. While it is a matter of concern that, even in the wake of the LaGrand
Judgment, there remain a substantial number of cases of failure to carry out the
obligation to furnish consular information to Mexican nationals, the Court notes
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that the United States has been making considerable efforts to ensure that its law
enforcement authorities provide consular information to every arrested person
they know or have reason to believe is a foreign national.
Especially at the stage of pre-trial consular information, it is noteworthy
that the United States has been making good faith efforts to implement the
obligations incumbent upon it under Article 36, paragraph 1, of the Vienna
Convention, through such measures as a new outreach programme launched in
1998, including the dissemination to federal, state and local authorities of the
State Department booklet mentioned above in paragraph 63. The Court wishes to
recall in this context what it has said in paragraph 64 about efforts in some
jurisdictions to provide the information under Article 36, paragraph 1 (b), in
parallel with the reading of the “Miranda rights”.
150. The Court would further note in this regard that in the LaGrand
case Germany sought, inter alia, “a straightforward assurance that the United
States will not repeat its unlawful acts” (I.C.J. Reports 2001, p. 511, para. 120).
With regard to this general demand for an assurance of non-repetition, the Court
stated:
“If a State, in proceedings before this Court, repeatedly refers to
substantial activities which it is carrying out in order to achieve compliance with
certain obligations under a treaty, then this expresses a commitment to follow
through with the efforts in this regard. The programme in question certainly
cannot provide an assurance that there will never again be a failure by the United
States to observe the obligations of notification under Article 36 of the Vienna
Convention. But no State could give such a guarantee and Germany does not seek
it. The Court considers that the commitment expressed by the United States to
ensure implementation of the specific measures adopted in performance of its
obligations under Article 36, paragraph 1 (b), must be regarded as meeting
Germany’s request for a general assurance of non-repetition.” (I.C.J. Reports
2001, pp. 512-513, para. 124.) The Court believes that as far as the request of
Mexico for guarantees and assurances of non-repetition is concerned, what the
Court stated in this passage of the LaGrand Judgment remains applicable, and
therefore meets that request.
*
**
151. The Court would now re-emphasize a point of importance. In the
present case, it has had occasion to examine the obligations of the
United States under Article 36 of the Vienna Convention in relation to
Mexican nationals sentenced to death in the United States. Its findings as
to the duty of review and reconsideration of convictions and sentences
have been directed to the circumstance of severe penalties being
imposed on foreign nationals who happen to be of Mexican nationality.
To avoid any ambiguity, it should be made clear that, while what the
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Court has stated concerns the Mexican nationals whose cases have been
brought before it by Mexico, the Court has been addressing the issues of
principle raised in the course of the present proceedings from the
viewpoint of the general application of the Vienna Convention, and there
can be no question of making an a contrario argument in respect of any
of the Court’s findings in the present Judgment. In other words, the fact
that in this case the Court’s ruling has concerned only Mexican nationals
cannot be taken to imply that the conclusions reached by it in the present
Judgment do not apply to other foreign nationals finding themselves in
similar situations in the United States.
*
152. By its Order of 5 February 2003 the Court, acting on a request by
Mexico, indicated by way of provisional measure that “The United States of
America shall take all measures necessary to ensure that Mr. César Roberto
Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera are
not executed pending final judgment in these proceedings” (I.C.J. Reports 2003,
pp. 91-92, para. 59 (I)) (see paragraph 21 above). The Order of 5 February 2003,
according to its terms and to Article 41 of the Statute, was effective pending final
judgment, and the obligations of the United States in that respect are, with effect
from the date of the present Judgment, replaced by those declared in this
Judgment. The Court has rejected Mexico’s submission that, by way of restitutio
in integrum, the United States is obliged to annul the convictions and sentences of
all of the Mexican nationals the subject of its claims (see above, paragraphs 115125). The Court has found that, in relation to these three persons (among others),
the United States has committed breaches of its obligations under Article 36,
paragraph 1 (b), of the Vienna Convention and Article 36, paragraphs 1 (a) and
(c), of that Convention; moreover, in respect of those three persons alone, the
United States has also committed breaches of Article 36, paragraph 2, of the said
Convention. The review and reconsideration of conviction and sentence required
by Article 36, paragraph 2, which is the appropriate remedy for breaches of
Article 36, paragraph 1, has not been carried out. The Court considers that in
these three cases it is for the United States to find an appropriate remedy having
the nature of review and reconsideration according to the criteria indicated in
paragraphs 138 et seq. of the present Judgment.
*
**
153. For these reasons,
THE COURT,
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(1) By thirteen votes to two,
Rejects the objection by the United Mexican States to the admissibility
of the objections presented by the United States of America to the jurisdiction of
the Court and the admissibility of the Mexican claims;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada,Tomka;
AGAINST: Judge Parra-Aranguren; Judge ad hoc Sepúlveda;
(2) Unanimously,
Rejects the four objections by the United States of America to the
jurisdiction of the Court;
(3) Unanimously,
Rejects the five objections by the United States of America to the
admissibility of the claims of the United Mexican States;
(4) By fourteen votes to one,
Finds that, by not informing, without delay upon their detention, the 51
Mexican nationals referred to in paragraph 106 (1) above of their rights under
Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations of
24 April 1963, the United States of America breached the obligations incumbent
upon it under that subparagraph;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Tomka; Judge ad hoc Sepúlveda;
AGAINST: Judge Parra-Aranguren;
(5) By fourteen votes to one,
Finds that, by not notifying the appropriate Mexican consular post
without delay of the detention of the 49 Mexican nationals referred to in
paragraph 106 (2) above and thereby depriving the United Mexican States of the
right, in a timely fashion, to render the assistance provided for by the Vienna
Convention to the individuals concerned, the United States of America breached
the obligations incumbent upon it under Article 36, paragraph 1 (b);
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IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Tomka; Judge ad hoc Sepúlveda;
AGAINST: Judge Parra-Aranguren;
(6) By fourteen votes to one,
Finds that, in relation to the 49 Mexican nationals referred to in
paragraph 106 (3) above, the United States of America deprived the United
Mexican States of the right, in a timely fashion, to communicate with and have
access to those nationals and to visit them in detention, and thereby breached the
obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the
Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Tomka; Judge ad hoc Sepúlveda;
AGAINST: Judge Parra-Aranguren;
(7) By fourteen votes to one,
Finds that, in relation to the 34 Mexican nationals referred to in
paragraph 106 (4) above, the United States of America deprived the United
Mexican States of the right, in a timely fashion, to arrange for legal
representation of those nationals, and thereby breached the obligations incumbent
upon it under Article 36, paragraph 1 (c), of the Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Tomka; Judge ad hoc Sepúlveda;
AGAINST: Judge Parra-Aranguren;
(8) By fourteen votes to one,
Finds that, by not permitting the review and reconsideration, in the light
of the rights set forth in the Convention, of the conviction and sentences of Mr.
César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo
Torres Aguilera, after the violations referred to in subparagraph (4) above had
been established in respect of those individuals, the United States of America
breached the obligations incumbent upon it under Article 36, paragraph 2, of the
Convention;
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International law v. Municipal law
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Tomka; Judge ad hoc Sepúlveda;
AGAINST: Judge Parra-Aranguren;
(9) By fourteen votes to one,
Finds that the appropriate reparation in this case consists in the
obligation of the United States of America to provide, by means of its own
choosing, review and reconsideration of the convictions and sentences of the
Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by
taking account both of the violation of the rights set forth in Article 36 of the
Convention and of paragraphs 138 to 141 of this Judgment;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Tomka; Judge ad hoc Sepúlveda;
AGAINST: Judge Parra-Aranguren;
(10) Unanimously,
Takes note of the commitment undertaken by the United States of
America to ensure implementation of the specific measures adopted in
performance of its obligations under Article 36, paragraph 1 (b), of the Vienna
Convention; and finds that this commitment must be regarded as meeting the
request by the United Mexican States for guarantees and assurances of nonrepetition;
(11) Unanimously,
Finds that, should Mexican nationals nonetheless be sentenced to severe
penalties, without their rights under Article 36, paragraph 1 (b), of the
Convention having been respected, the United States of America shall provide,
by means of its own choosing, review and reconsideration of the conviction and
sentence, so as to allow full weight to be given to the violation of the rights set
forth in the Convention, taking account of paragraphs 138 to 141 of this
Judgment.
Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this thirty-first day of March, two thousand and
four, in three copies, one of which will be placed in the archives of the Court and
the others transmitted to the Government of the United Mexican States and the
Government of the United States of America, respectively.
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(Signed) SHI Jiuyong,
President.
(Signed) Philippe COUVREUR,
Registrar.
President SHI and Vice-President RANJEVA append declarations to the
Judgment of the Court; Judges VERESHCHETIN, PARRA-ARANGUREN and
TOMKA and Judge ad hoc SEPÚLVEDA append separate opinions to the
Judgment of the Court.
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International law v. Municipal law
Lecture # 12 Common Law
Section 1 – The Original English System
Although the Romans occupied England under the reign of Julius Caesar,
they did not have time to really establish their legal system. The Angles,
Danes, Jutes and Saxons just continued with their unwritten local
customs. Things changed with the establishment of William the
Conqueror as king, after his victory at Hastings, in 1066, against Harold.
The new King instituted with his closest advisors the Curia Regis that
exercised judicial as executive and legislative powers. But some functions
were later delegated to newly created institutions. The Court of
Exchequer, a judicial offspring of the financial side of the Curia Regis,
was the first Common law court in charge to resolve tax disputes. The
Court of Common Pleas resolved issues between subjects which did not
involve a direct interest of the king; whereas the King’s Bench was
established to hear issues wit a direct royal interest: the pleas of the
Crown.
However, being exceptional courts, only a limited number of cases could
be handled. Thus was established a limited list of cases that could be
heard. In order to submit a case, a writ from the Chancellor was
necessary. The Common law thus was characterized by a very formalistic
procedure: it was necessary that the case should correspond exactly to one
on the list, and after having obtained a writ, one had to follow a very rigid
procedure, which was different for each writ. The slightest procedural
mistake resulted in a dismissal or nonsuit. It was clear that such a system
were condemned to be quickly insufficient and defective. That’s why
when the royal courts could not be seized of a case or could not provide
an adequate remedy, it was still possible to request the king by appealing
to his conscience and to intervene as sovereign justiciar. The King, then
the Chancellor to whom he delegated later some of his powers, did not
intervene to create new rules of law: they only intervened in the name of
morality. It was said that the Chancellor is the “keeper of the king’s
conscience” and soon a formal Court of Chancery assumed jurisdiction of
pleas in equity, offering new remedies. For example, in case of trespass
Common law offered damages but did not provide a means to have the
trespasser stopped. The Chancellor had to intervene in equity granting an
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injunction ordering the defendant to stop infringing on another’s property.
If the defendant did not obey, he was sent to prison for contempt of court.
Consequently the plaintiff had to bring to successive actions: one in
damages before a Common law court, another in Chancery to obtain an
equitable injunction.
The returning soldiers of the 12th century’s crusades disrupted rural
English life. In order to remedy to the situation, the king Richard I signed
in 1361 the Justices of the Peace Act, granting to “knights, esquires or
gentleman” to “pursue, arrest, take and chastise” those breaching peace.
A breach into the Common law had been undergone in the 14th and 15th
centuries in Scotland due to an alliance with France. Its private law is still
today based on Civil and Roman law, whereas other areas are ruled by the
predominant Common law.
Today, following Dicey’s classification, we can term the distribution of
English Common law as three-fold. In “seeded nations”, the Common law
introduced itself slightly into an already existing and developed legal
system like it has been the case in India. On the contrary, in “settled
countries” like the United States, it fulfilled an unoccupied legal space.
Finally, in “conquered countries” its establishment had been violent in
order to remove the former authority, like we saw it in South Africa. In
the latter case, however, reminiscences of the past continue to exist. So for
instance, the province of Transvaal continues to apply Roman-Dutch law
besides Common law.
Section 2 – The American System
The United States are obviously a Common law country due to Oxford
professor William Blackstone’s Commentaries on the Laws of England, a
readable and concise legal book, able to be carried to outlying areas of the
colonies. If the new American lawyers had have been left with
inaccessible and complex case reports, they maybe would have turned to
civil law codes.
Whereas in the United Kingdom codification through statutes takes more
and more place, in the United States legislation is still considered as an
222
exception to the judge-made law, with the single exception of Louisiana
that adopted Civil law due to the French occupation.
Each State has so its own Common law; but is there also a federal
Common law? Judge Story responded affirmatively in Swift v. Tyson33. In
absence of federal statutes, solutions for interstates litigations concerning
commercial activities are not to be sought in the decisions of local
tribunals, but in the general principles and doctrines of commercial
jurisprudence. “ Undoubtedly, the decisions of the local tribunals upon
such subjects are entitled to, and will receive, the most deliberate attention
and respect of this court; but they cannot furnish positive rules, or
conclusive authority, by which our own [the Supreme Court’s] judgments
are to be bound up and governed”. However, some decades later, the
Supreme Court reversed in Erie Railroad its former ruling, declaring
expresis verbis that “there is no federal general Common law”34 and
federal courts are to apply the law as declared by the highest state court –
State Common law. However, since then, a new position has been adopted
by the Supreme Court, distinguishing between general federal Common
law, still prohibited under Erie and a specialized federal Common law,
which has been consecrated by the Clearfield35 and Sabbatino36 decisions,
that protects uniquely federal interests like regulating water
apportionment37 or cases affecting international relations38.
33
42 US 1 (1842).
Erie Railroad Co v. Tompkins, 304 US 64 (1938).
35
Clearfield Trust Co v. United States, 318 US 363 (1943).
36
Banco nacional de Cuba v. Sabbatino, 376 US 398 (1964).
37
Hinderlinder v. La Plata River Ditch Co, 304 US 92 (1938).
38
Cf the Sabbatino case.
34
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Cases and Materials
John Swift v. George W. Tyson
Supreme Court of the United States
January Term, 1842
[…]
STORY, Justice, delivered the opinion of the court.
This cause comes before us from the circuit court of the southern district of New
York, upon a certificate of division of the judges of that court. The action was
brought by the plaintiff, Swift, as indorsee, against the defendant, Tyson, as
acceptor, upon a bill of exchange dated at Portland, Maine, on the first day of
May 1836, for the sum of $1540.30, payable six months after date, and grace,
drawn by one Nathaniel Norton and one Jairus S. Keith upon and accepted by
Tyson, at the city of New York, in favor of the order of Nathaniel Norton, and by
Norton indorsed to the plaintiff. The bill was dishonored at maturity.
At the trial, the aceptance and indorsement of the bill were admitted, and the
plaintiff there rested his case. The defendant then introduced in evidence the
answer of Swift to a bill of discovery, by which it appeared, that Swift took the
bill, before it *15 became due, in payment of a promissory note due to him by
Norton & Keith; that he understood, that the bill was accepted in part payment of
some lands sold by Norton to a company in New York; that Swift was a bona fide
holder of the bill, not having any notice of anything in the sale or title to the
lands, or otherwise impeaching the transaction, and with the full belief that the
bill was justly due. The particular circumstances are fully set forth in the answer
in the record; but it does not seem necessary further to state them. The defendant
then offered to prove, that the bill was accepted by the defendant, as part
consideration for the purchase of certain lands in the state of Maine, which
Norton & Keith represented themselves to be the owners of, and also represented
to be of great value, and contracted to convey a good title thereto; and that the
representations were in every respect fraudulent and false, and Norton & Keith
had no title to the lands, and that the same were of little or no value. The plaintiff
objected to the admission of such testimony, or of any testimony, as against him,
impeaching or showing a failure of the consideration,on which the bill was
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accepted, under the facts admitted by the defendant, and those proved by him, by
reading the answer of plaintiff to the bill of discovery. The judges of the circuit
court thereupon divided in opinion upon the following point or question of law-Whether, under the facts last mentioned, the defendant was entitled to the same
defence to the action, as if the suit was between the original parties to the bill,
that is to say, Norton, or Norton & Keith, and the defendant; and whether the
evidence so offered was admissible as against the plaintiff in the action. And this
is the question certified to us for our decision.
There is no doubt, that a bona fide holder of a negotiable instrument, for a
valuable consideration, without any notice of facts which impeach its validity, as
between the antecedent parties, if he takes it under an indorsement made before
the same becomes due, holds the title unaffected by these facts, and may recover
thereon, although, as between the antecedent parties, the transaction may be
without any legal validity. This is a doctrine so long and so well established, and
so essential to the security of negotiable paper, that it is laid up among the
fundamentals of the law, and requires no authority or reasoning to be now
brought *16 in its support. As little doubt is there, that the holder of any
negotiable paper, before it is due, is not bound to prove that he is a bona fide
holder for a valuable consideration, without notice; for the law will presume, that,
in the absence of all rebutting proofs, and therefore, it is incumbent upon the
defendant to establish by way of defence, satisfactory proofs of the contrary, and
thus to overcome the prima facie title of the plaintiff.
In the present case, the plaintiff is a bona fide holder, without notice, for what the
law deems a good and valid consideration, that is, for a preexisting debt; and the
only real question in the cause is, whether, under the circumstances of the present
case, such a pre-existing debt constitutes a valuable consideration, in the sense of
the general rule applicable to negotiable instruments. We say, under the
circumstances of the present case, for the acceptance having been made in New
York, the argument on behalf of the defendant is, that the contract is to be treated
as a New York contract, and therefore, to be governed by the laws of New York,
as expounded by its courts, as well upon general principles, as by the express
provisions of the 34th section of the judiciary act of 1789, ch. 20. And then it is
further contended, that by the law of New York, as thus expounded by its courts,
a pre-existing debt does not constitute, in the sense of the general rule, a valuable
consideration applicable to negotiable instruments.
In the first place, then, let us examine into the decisions of the courts of New
York upon this subject. In the earliest case, Warren v. Lynch, 5 Johns. 289, the
supreme court of New York appear to have held, that a pre- existing debt was a
sufficient consideration to entitle a bona fide holder, without notice, to recover
the amount of a note indorsed to him, which might not, as between the original
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parties, be valid. The same doctrine was affirmed by Mr. Chancellor KENT, in
Bay v. Coddington, 5 Johns. Ch. 54. Upon that occasion, he said, that negotiable
paper can be assigned or transferred by an agent or factor, or by any other person,
fraudulently, so as to bind the true owner, as against the holder, provided it be
taken in the usual course of trade, and for a fair and valuable consideration,
without notice of the fraud. But he added, that the holders in that case were not
entitled to the benefit of the rule, because it was not negotiated to *17 them in the
usual course of business or trade, nor in payment of any antecedent and existing
debt, nor for cash, or property advanced, debt created, or responsibility incurred,
on the strength and credit of the notes; thus directly affirming, that a pre-existing
debt was a fair and valuable consideration within the protection of the general
rule. And he has since affirmed the same doctrine, upon a full review of it, in his
Commentaries. (3 Kent, Com. º 44, p. 81.) The decision in the case of Bay v.
Coddington was afterwards affirmed in the court of errors (20 Johns. 637), and
the general reasoning of the chancellor was fully sustained. There were, indeed,
peculiar circumstances in that case, which the court seem to have considered as
entitling it to be treated as an exception to the general rule, upon the ground,
either because the receipt of the notes was under suspicious circumstances, the
transfer having been made after the known insolvency of the indorser, or because
the holder had received it as a mere security for contingent responsibilities, with
which the holders had not then become charged. There was, however, a
considerable diversity of opinion among the members of the court upon that
occasion, several of them holding that the decree ought to be reversed, others
affirming that a pre-existing debt was a valuable consideration, sufficient to
protect the holders; and others again insisting, that a pre-existing debt was not
sufficient. From that period, however, for a series of years, it seems to have been
held by the supreme court of the state, that a pre-existing debt was not a sufficient
consideration to shut out the equities of the original parties in favor of the
holders. But no case to that effect has ever been decided in the court of errors.
The cases cited at the bar, and especially Rosa v. Brotherson, 10 Wend. 85;
Ontario Bank v. Worthington, 12 Ibid. 593, and Payne v. Cutler, 13 Ibid. 605, are
directly in point. But the more recent cases Bank of Salina v. Babcock, 21 Ibid.
490, and Bank of Sandusky v. Scoville, 24 Ibid. 115, have greatly shaken, if they
have not entirely overthrown those decisions, and seem to have brought back the
doctrine to that promulgated in the earliest cases. So that, to say the least of it, it
admits of serious doubt, whether any doctrine upon this question can, at the
present time, be treated as finally established; and it is certain. *18 that the court
of errors have not pronounced any positive opinion upon it.
But, admitting the doctrine to be fully settled in New York, it remains to be
considered, whether it is obligatory upon this court, if it differs from the
principles established in the general commercial law. It is observable, that the
courts of New York do not found their decisions upon this point, upon any local
statute, or positive, fixed or ancient local usage; but they deduce the doctrine
from the general principles of commercial law. It is, however, contended, that the
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34th section of the judiciary act of 1789, ch. 20, furnishes a rule obligatory upon
this court to follow the decisions of the state tribunals in all cases to which they
apply. That section provides 'that the laws of the several states, except where the
constitution, treaties or statutes of the United States shall otherwise require or
provide, shall be regarded as rules of decision, in trials at Common law, in the
courts of the United States, in cases where they apply.' In order to maintain the
argument, it is essential, therefore, to hold, that the word 'laws,' in this section,
includes within the scope of its meaning, the decisions of the local tribunals. In
the ordinary use of language, it will hardly be contended, that the decisions of
courts constitute laws. They are, at most, only evidence of what the laws are, and
are not, of themselves, laws. They are often re-examined, reversed and qualified
by the courts themselves, whenever they are found to be either defective, or illfounded, or otherwise incorrect. The laws of a state are more usually understood
to mean the rules and enactments promulgated by the legislative authority
thereof, or long-established local customs having the force of laws. In all the
various cases, which have hitherto come before us for decision, this court have
uniformly supposed, that the true interpretation of the 34th section limited its
application to state laws, strictly local, that is to say, to the positive statutes of the
state, and the construction thereof adopted by the local tribunals, and to rights and
titles to things having a permanent locality, such as the rights and titles to real
estate, and other matters immovable and intra-territorial in their nature and
character. It never has been supposed by us, that the section did apply, or was
designed to apply, to questions of a more general nature, not at all dependent
upon local statutes or *19 local usages of a fixed and permanent operation, as, for
example, to the construction of ordinary contracts or other written instruments,
and especially to questions of general commercial law, where the state tribunals
are called upon to perform the like functions as ourselves, that is, to ascertain,
upon general reasoning and legal analogies, what is the true exposition of the
contract or instrument, or what is the just rule furnished by the principles of
commercial law to govern the case. And we have not now the slightest difficulty
in holding, that this section, upon its true intendment and construction, is strictly
limited to local statutes and local usages of the character before stated, and does
not extend to contracts and other instruments of a commercial nature, the true
interpretation and effect whereof are to be sought, not in the decisions of the local
tribunals, but in the general principles and doctrines of commercial jurisprudence.
Undoubtedly, the decisions of the local tribunals upon such subjects are entitled
to, and will receive, the most deliberate attention and respect of this court; but
they cannot furnish positive rules, or conclusive authority, by which our own
judgments are to be bound up and governed. The law respecting negotiable
instruments may be truly declared in the languages of Cicero, adopted by Lord
MANSFIELD in Luke v. Lyde, 2 Burr. 883, 887, to be in a great measure, not the
law of a single country only, but of the commercial world. Non erit alia lex
Romae, alia Athenis; alia nunc, alia posthac; sed et apud omnes gentes, et omni
tempore una eademque lex obtinebit.
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It becomes necessary for us, therefore, upon the present occasion, to express our
own opinion of the true result of the commercial law upon the question now
before us. And we have no hesitation in saying, that a pre-existing debt does
constitute a valuable consideration, in the sense of the general rule already stated,
as applicable to negotiable instruments. Assuming it to be true (which, however,
may well admit of some doubt from the generality of the language), that the
holder of a negotiable instrument is unaffected with the equities between the
antecedent parties, of which he has no notice, only where he receives it in the
usual course of trade and business, for a valuable consideration, before it
becomes due; we are prepared to say, that receiving it in payment of, or as
security for, a pre-existing debt, *20 is according to the known usual course of
trade and business. And why, upon principle, should not a pre-existing debt be
deemed such a valuable consideration? It is for the benefit and convenience of the
commercial world, to give as wide an extent as practicable to the credit and
circulation of negotiable paper, that it may pass not only as security for new
purchases and advances, made upon the transfer thereof, but also in payment of,
and as security for, pre-existing debts. The creditor is thereby enabled to realize
or to secure his debt, and thus may safely give a prolonged credit, or forbear from
taking any legal steps to enforce his rights. The debtor also has the advantage of
making his negotiable securities of equivalent value to cash. But establish the
opposite conclusion, that negotiable paper cannot be applied in payment of, or as
security for, pre- existing debts, without letting in all the equities between the
original and antecedent parties, and the value and circulation of such securities
must be essentially diminished, and the debtor driven to the embarrassment of
making a sale thereof, often at a ruinous discount, to some third person, and then,
by circuity, to apply the proceeds to the payment of his debts. What, indeed, upon
such a doctrine, would become of that large class of cases, where new notes are
given by the same or by other parties, by way of renewal or security to banks, in
lieu of old securities discounted by them, which have arrived at maturity?
Probably, more than one-half of all bank transactions in our country, as well as
those of other countries, are of this nature. The doctrine would strike a fatal blow
at all discounts of negotiable securities for pre-existing debts.
This question has been several times before this court, and it has been uniformly
held, that it makes no difference whatsoever, as to the rights of the holder,
whether the debt, for which the negotiable instrument is transferred to him, is a
pre-existing debt, or is contracted at the time of the transfer. In each case, he
equally gives credit to the instrument. The cases of Coolidge v. Payson, 2 Wheat.
66, 70, 73, and Townsley v. Sumrall, 2 Pet. 170, 182, are directly in point. In
England, the same doctrine has been uniformly acted upon. As long ago as the
case of Pillans v. Van Mierop, 3 Burr. 1664, the very point was made, and the
objection was overruled.
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That, indeed, was a case of far more stringency *21 than the one now before us;
for the bill of exchange, there drawn in discharge of a pre-existing debt, was held
to bind the party as acceptor, upon a mere promise made by him to accept, before
the bill was actually drawn. Upon that occasion, Lord MANSFIELD, likening the
case to that of a letter of credit, said, that a letter of credit may be given for
money already advanced, as well as for money to be advanced in future: and the
whole court held the plaintiff entitled to recover. From that period downward,
there is not a single case to be found in England, in which it has ever been held
by the court, that a pre-existing debt was not a valuable consideration, sufficient
to protect the holder, within the meaning of the general rule, although incidental
dicta have been sometimes relied on, to establish the contrary, such as the dictum
of Lord Chief Justice ABBOTT, in Smith v. De Witt, 6 Dow. & Ryl. 120, and De
la Chaumette v. Bank of England, 9 Barn. & Cres. 209, where, however, the
decision turned upon very different considerations.
Mr. Justice Bayley, in his valuable work on bills of exchange and promissory
notes, lays down the rule in the most general terms. 'The want of consideration,'
says he, 'in toto or in part, cannot be insisted on, if the plaintiff, or any
intermediate party between him and the defendant took the bill or note bona fide
and upon a valid consideration.' Bayley on Bills, p. 499-500 (5th Lond. edit.
1830). It is observable, that he here uses the words 'valid consideration,'
obviously intended to make the distinction, that it is not intended to apply solely
to cases, where a present consideration for advances of money, on goods or
otherwise, takes place at the time of the transfer and upon the credit thereof. And
in this he is fully borne out by the authorities. They go further, and establish, that
a transfer as security for past, and even for future responsibilities, will, for this
purpose, be a sufficient, valid and valuable consideration. Thus, in the case of
Bosanquet v. Dudman, 1 Stark. 1, it was held by Lord ELLENBOROUGH, that if
a banker be under acceptances to an amount beyond the cash balance in his
hands, every bill he holds of that customer's, bona fide, he is to be considered as
holding for value; and it makes no difference, though he hold other collateral
securities, more than sufficient to cover the excess of his acceptances. *22 The
same doctrine was affirmed by Lord ELDON, in Ex parte Bloxham, 8 Ves. 531,
as equally applicable to past and to future acceptances. The subsequent cases of
Heywood v. Watson, 4 Bing. 496, and Bramah v. Roberts, 1 Bing. (N. C.) 469,
and Percival v. Frampton, 2 Cr. M. & R. 180, are to the same effect. They
directly establish, that a bona fide holder, taking a negotiable note in payment of
or as security for a pre-existing debt, is a holder for a valuable consideration,
entitled to protection against all the equities between the antecedent parties. And
these are the latest decisions, which our researches have enabled us to ascertain to
have been made in the English courts upon the subject.
In the American courts, so far as we have been able to trace the decissions, the
same doctrine seems generally, but not universally, to prevail. In Brush v.
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Scribner, 11 Conn. 388, the supreme court of Connecticut, after an elaborate
review of the English and New York adjudications, held, upon general principles
of commercial law, that a pre-existing debt was a valuable consideration,
sufficient to convey a valid title to a bona fide holder against all the antecedent
parties to a negotiable note. There is no reason to doubt, that the same rule has
been adopted and constantly adhered to in Massachusetts; and certainly, there is
no trace to be found to the contrary. In truth, in the silence of any adjudications
upon the subject, in a case of such frequent and almost daily occurrence in the
commercial states, it may fairly be presumed, that whatever constitutes a valid
and valuable consideration, in other cases of contract, to support titles of the most
solemn nature, is held a fortiori to be sufficient in cases of negotiable
instruments, as indispensable to the security of holders, and the facility and safety
of their circulation. Be this as it may, we entertain no doubt, that a bona fide
holder, for a pre-existing debt, of a negotiable instrument, is not affected by any
equities between the antecedent parties, where he has received the same, before it
became due, without notice of any such equities. We are all, therefore, of opinion,
that the question on this point, propounded by the circuit court for our
consideration, ought to be answered in the negative; and we shall, accordingly,
direct it so to be certified to the circuit court.
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) 304 U.S. 64
Argued Jan. 31, 1938.
Decided April 25, 1938.
[304 U.S. 64, 65] Messrs. Theodore Kiendl, Harold W. Bissell, and William C.
Cannon, all of New York City, for petitioner.
[304 U.S. 64, 68] Messrs. Fred H. Rees, Alexander L. Strouse, and Bernard G.
Nemeroff, all of New York City (Bernard Kaufman and William Walsh, both of
New York City, and Aaron L. Danzig, of Jamaica, L.I., on the brief) for
respondent.
[304 U.S. 64, 69]
Mr. Justice BRANDEIS delivered the opinion of the Court.
The question for decision is whether the oft-challenged doctrine of Swift v.
Tyson1 shall now be disapproved.
Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing
freight train of the Erie Railroad Company while walking along its right of way at
Hughestown in that state. He claimed that the accident occurred through
negligence in the operation, or maintenance, of the train; that he was rightfully on
the premises as licensee because on a commonly used beaten footpath which ran
for a short distance alongside the tracks; and that he was struck by something
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which looked like a door projecting from one of the moving cars. To enforce that
claim he brought an action in the federal court for Southern New York, which
had jurisdiction because the company is a corporation of that state. It denied
liability; and the case was tried by a jury. [304 U.S. 64, 70] The Erie insisted
that its duty to Tompkins was no greater than that owed to a trespasser. It
contended, among other things, that its duty to Tompkins, and hence its liability,
should be determined in accordance with the Pennsylvania law; that under the
law of Pennsylvania, as declared by its highest court, persons who use pathways
along the railroad right of way-that is, a longitudinal pathway as distinguished
from a crossing-are to be deemed trespassers; and that the railroad is not liable for
injuries to undiscovered trespassers resulting from its negligence, unless it be
wanton or willful. Tompkins denied that any such rule had been established by
the decisions of the Pennsylvania courts; and contended that, since there was no
statute of the state on the subject, the railroad's duty and liability is to be
determined in federal courts as a matter of general law.
The trial judge refused to rule that the applicable law precluded recovery. The
jury brought in a verdict of $30,000; and the judgment entered thereon was
affirmed by the Circuit Court of Appeals, which held ( 2 Cir., 90 F.2d 603, 604),
that it was unnecessary to consider whether the law of Pennsylvania was as
contended, because the question was one not of local, but of general, law, and
that 'upon questions of general law the federal courts are free, in absence of a
local statute, to exercise their independent judgment as to what the law is; and it
is well settled that the question of the responsibility of a railroad for injuries
caused by its servants is one of general law. ... Where the public has made open
and notorious use of a railroad right of way for a long period of time and without
objection, the company owes to persons on such permissive pathway a duty of
care in the operation of its trains. ... It is likewise generally recognized law that a
jury may find that negligence exists toward a pedestrian using a permissive path
on the railroad right of way if he is hit by some object projecting from the side of
the train.' [304 U.S. 64, 71] The Erie had contended that application of the
Pennsylvania rule was required, among other things, by section 34 of the Federal
Judiciary Act of September 24, 1789, c. 20, 28 U.S.C. 725, 28 U.S.C.A. s 725,
which provides: 'The laws of the several States, except where the Constitution,
treaties, or statutes of the United States otherwise require or provide, shall be
regarded as rules of decision in trials at Common law, in the courts of the United
States, in cases where they apply.'
Because of the importance of the question whether the federal court was free to
disregard the alleged rule of the Pennsylvania Common law, we granted
certiorari. 302 U.S. 671 , 58 S.Ct. 50, 82 L.Ed. --.
First. Swift v. Tyson, 16 Pet. 1, 18, held that federal courts exercising jurisdiction
on the ground of diversity of citizenship need not, in matters of general
jurisprudence, apply the unwritten law of the state as declared by its highest
court; that they are free to exercise an independent judgment as to what the
Common law of the state is-or should be; and that, as there stated by Mr. Justice
Story, 'the true interpretation of the 34th section limited its application to state
231
Lectures on the US Legal System
laws, strictly local, that is to say, to the positive statutes of the state, and the
construction thereof adopted by the local tribunals, and to rights and titles to
things having a permanent locality, such as the rights and titles to real estate, and
other matters immovable and intra-territorial in their nature and character. It
never has been supposed by us, that the section did apply, or was designed to
apply, to questions of a more general nature, not at all dependent upon local
statutes or local usages of a fixed and permanent operation, as, for example, to the
construction of ordinary contracts or other written instruments, and especially to
questions of general commercial law, where the state tribunals are called upon to
perform the like functions as ourselves, that is, to ascertain, upon general
reasoning and legal analogies, what is the true exposition of the contract or [304
U.S. 64, 72] instrument, or what is the just rule furnished by the principles of
commercial law to govern the case.'
The Court in applying the rule of section 34 to equity cases, in Mason v. United
States, 260 U.S. 545, 559 , 43 S.Ct. 200, 204, said: 'The statute, however, is
merely declarative of the rule which would exist in the absence of the statute.' 2
The federal courts assumed, in the broad field of 'general law,' the power to
declare rules of decision which Congress was confessedly without power to enact
as statutes. Doubt was repeatedly expressed as to the correctness of the
construction given section 34,3 and as to the soundness of the rule which it
introduced. 4 But it was the more recent research of a competent scholar, who
examined the original document, which established that the construction given to
it by the Court was erroneous; and that the purpose of the section was merely to
make certain that, in all matters except those in which some federal law is
controlling, [304 U.S. 64, 73] the federal courts exercising jurisdiction in
diversity of citizenship cases would apply as their rules of decision the law of the
state, unwritten as well as written. 5
Criticism of the doctrine became widespread after the decision of Black & White
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S.
518 , 48 S.Ct. 404, 57 A.L.R. 426.6 There, Brown &Yellow, a Kentucky
corporation owned by Kentuckians, and the Louisville & Nashville Railroad, also
a Kentucky corporation, wished that the former should have the exclusive
privilege of soliciting passenger and baggage transportation at the Bowling
Green, Ky., Railroad station; and that the Black & White, a competing Kentucky
corporation, should be prevented from interfering with that privilege. Knowing
that such a contract would be void under the Common law of Kentucky, it was
arranged that the Brown & Yellow reincorporate under the law of Tennessee, and
that the contract with the railroad should be executed there. The suit was then
brought by the Tennessee corporation in the federal court for Western Kentucky
to enjoin competition by the Black & White; an injunction issued by the District
Court [304 U.S. 64, 74] was sustained by the Court of Appeals; and this Court,
citing many decisions in which the doctrine of Swift & Tyson had been applied,
affirmed the decree.
Second. Experience in applying the doctrine of Swift v. Tyson, had revealed its
defects, political and social; and the benefits expected to flow from the rule did
232
Common Law
not accrue. Persistence of state courts in their own opinions on questions of
Common law prevented uniformity;7 and the impossibility of discovering a
satisfactory line of demarcation between the province of general law and that of
local law developed a new well of uncertainties. 8
On the other hand, the mischievous results of the doctrine had become apparent.
Diversity of citizenship jurisdiction was conferred in order to prevent
apprehended discrimination in state courts against those not citizens of the state.
Swift v. Tyson introduced grave discrimination by noncitizens against citizens. It
made rights enjoyed under the unwritten 'general law' vary according to whether
enforcement was sought in the state [304 U.S. 64, 75] or in the federal court;
and the privilege of selecting the court in which the right should be determined
was conferred upon the noncitizen. 9 Thus, the doctrine rendered impossible
equal protection of the law. In attempting to promote uniformity of law
throughout the United States, the doctrine had prevented uniformity in the
administration of the law of the state.
The discrimination resulting became in practice far-reaching. This resulted in part
from the broad province accorded to the so-called 'general law' as to which
federal courts exercised an independent judgment. 10 In addition to questions of
purely commercial law, 'general law' was held to include the obligations under
contracts entered into and to be performed within the state, 11 the extent to which
a carrier operating within a state may stipulate for exemption from liability for his
own negligence or that of his employee;12 the liability for torts committed within
the state upon persons resident or property located there, even where the question
of lia- [304 U.S. 64, 76] bility depended upon the scope of a property right
conferred by the state; 13 and the right to exemplary or punitive damages. 14
Furthermore, state decisions construing local deeds,15 mineral conveyances,16
and even devises of real estate, 17 were disregarded. 18
In part the discrimination resulted from the wide range of persons held entitled to
avail themselves of the federal rule by resort to the diversity of citizenship
jurisdiction. Through this jurisdiction individual citizens willing to remove from
their own state and become citizens of another might avail themselves of the
federal rule. 19 And, without even change of residence, a corporate citizen of
[304 U.S. 64, 77]
the state could avail itself of the federal rule by
reincorporating under the laws of another state, as was done in the Taxicab Case.
The injustice and confusion incident to the doctrine of Swift v. Tyson have been
repeatedly urged as reasons for abolishing or limiting diversity of citizenship
jurisdiction. 20 Other legislative relief has been proposed. 21 If only a question of
statutory construction were involved, we should not be prepared to abandon a
doctrine so widely applied throughout nearly a century. 22 But the uncon- [304
U.S. 64, 78] stitutionality of the course pursued has now been made clear, and
compels us to do so.
Third. Except in matters governed by the Federal Constitution or by acts of
Congress, the law to be applied in any case is the law of the state. And whether
the law of the state shall be declared by its Legislature in a statute or by its
233
Lectures on the US Legal System
highest court in a decision is not a matter of federal concern. There is no federal
general Common law. Congress has no power to declare substantive rules of
Common law applicable in a state whether they be local in their nature or
'general,' be they commercial law or a part of the law of torts. And no clause in
the Constitution purports to confer such a power upon the federal courts. As
stated by Mr. Justice Field when protesting in Baltimore & Ohio R.R. Co. v.
Baugh, 149 U.S. 368, 401 , 13 S.Ct. 914, 927, against ignoring the Ohio Common
law of fellow-servant liability: I am aware that what has been termed the general
law of the country-which is often little less than what the judge advancing the
doctrine thinks at the time should be the general law on a particular subject-has
been often advanced in judicial opinions of this court to control a conflicting law
of a state. I admit that learned judges have fallen into the habit of repeating this
doctrine as a convenient mode of brushing aside the law of a state in conflict with
their views. And I confess that, moved and governed by the authority of the great
names of those judges, I have, myself, in many instances, unhesitatingly and
confidently, but I think now erroneously, repeated the same doctrine. But,
notwithstanding the great names which may be cited in favor of the doctrine, and
notwithstanding the frequency with which the doctrine has been reiterated, there
stands, as a perpetual protest against its repetition, the constitution of the United
States, which recognizes and preserves the autonomy and independence of the
states,- independence in their legislative and inde- [304 U.S. 64, 79] pendence in
their judicial departments. Supervision over either the legislative or the judicial
action of the states is in no case permissible except as to matters by the
constitution specifically authorized or delegated to the United States. Any
interference with either, except as thus permitted, is an invasion of the authority
of the state, and, to that extent, a denial of its independence.'
The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr.
Justice Holmes. 23 The doctrine rests upon the assumption that there is 'a
transcendental body of law outside of any particular State but obligatory within it
unless and until changed by statute,' that federal courts have the power to use
their judgment as to what the rules of Common law are; and that in the federal
courts 'the parties are entitled to an independent judgment on matters of general
law':
'But law in the sense in which courts speak of it today does not exist without
some definite authority behind it. The Common law so far as it is enforced in a
State, whether called Common law or not, is not the Common law generally but
the law of that State existing by the authority of that State without regard to what
it may have been in England or anywhere else. ...
'The authority and only authority is the State, and if that be so, the voice adopted
by the State as its own (whether it be of its Legislature or of its Supreme Court)
should utter the last word.'
Thus the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, 'an
unconstitutional assumption of powers by the Courts of the United States which
no lapse of time or respectable array of opinion should make us hesitate to
234
Common Law
correct.' In disapproving that doctrine we do not hold [304 U.S. 64, 80]
unconstitutional section 34 of the Federal Judiciary Act of 1789 or any other act
of Congress. We merely declare that in applying the doctrine this Court and the
lower courts have invaded rights which in our opinion are reserved by the
Constitution to the several states.
Fourth. The defendant contended that by the Common law of Pennsylvania as
declared by its highest court in Falchetti v. Pennsylvania R. Co., 307 Pa. 203, 160
A. 859, the only duty owed to the plaintiff was to refrain from willful or wanton
injury. The plaintiff denied that such is the Pennsylvania law. 24 In support of
their respective contentions the parties discussed and cited many decisions of the
Supreme Court of the state. The Circuit Court of Appeals ruled that the question
of liability is one of general law; and on that ground declined to decide the issue
of state law. As we hold this was error, the judgment is reversed and the case
remanded to it for further proceedings in conformity with our opinion.
REVERSED.
235
Lectures on the US Legal System
Lecture # 13 – Other Legal Sources
Section 1 - Equity
As we have seen, equity provides remedies for cases where writs do not
exist. Typical equity remedies are specific performances – asking for a
forced execution of the contract - and injunctions that order the defendant
to undertake a positive action.
In 1848, New York was the first State to abolish Chancery courts. Since
then, Rule 2 of the “Field”39 Code of Civil Procedure has established for
federal courts one single form of action, known as “civil action”
independently if it is a complaint at law or a proceeding in equity.
However, the distinction maintains its importance, as there is a right to
jury in Common law procedures, but not for demands in equity. However,
some states still continue to distinguish: New Jersey retains entirely
separate courts of equity and Common law; others like Pennsylvania have
a judge sit alternately as a Common law judge and as an equity judge.
Section 2 – Codification and Uniform Law
Following the ideas of Jeremy Bentham, David Dudley Field defended the
precept of codification in the United States. His code of civil procedure
had been adopted first in 1850 in New York, than later by some other 30
states. However other proposed codes, like a civil code, had less success40.
Therefore, in 1889, the American Bar Association (ABA), concerned
39
40
See infra Section 2.
Reimann, The Historical School Against Codification : Savigny, Carter, and
the defeat of the New York Civil Code, American Journal of Comparative
Law, 89.95.
236
about the anarchical development of State law set up a specialized
committee in charge of drafting proposals of uniform laws. The first result
was the vote in 1898 of a federal law regarding insolvency based on a
proposal for Uniform law. In 1912, the National Conference of
Commissioners on Uniform State Law was created, composed of delegates
of the fifty States. The most important success of the Conference until
now has been the Uniform Commercial Code, which draft had been
proposed in 1952 and adopted first by Pennsylvania in 1954, for coming
into effects in all the states except Louisiana.
It is also worthwhile to mention that the US Code is not a codification as
it has to be understood in civil law, but only a systemized compilation of
the various federal statutes.
Section 3 – Doctrine
The 1820s saw the publication of two important works in the United
States, “americanizing” Blackstone’s Commentaries, which were, as I said
before, the founding cornerstone of the American Legal System. In 1826,
Justice James Kent from the New York Supreme Court published his
Commentaries on American Law. Right after followed the Commentaries
of Judge Joseph Story. In 1923, the movement of Restatement initiated,
sponsored by the newly created American Law Institute. The Restatement
idea consisted in having a group of lawyers, judges and professors agree
on the essence of the law in particular areas through research and
discussion. As Kempin points it out: ”The Restatements do not present
new law, in the manner of a statute. Its authors endeavor to present what
they consider the best approach from decided cases in all jurisdictions”41.
Beneath the restatements, there are also, among others, the American Law
Reports Annotated that publish leading cases and analyze them in a
comparative approach with the case law of the different states.
41
Op.cit., p. 127.
237
Lecture 14 – The Judge and Case Law
Even if in a first move, most American courts rejected William
Blackstone’s assertion stare decisis et quieta non movere, in reject to the
colonial past of England42, a turn came by the 1850’ when Maryland and
Pennsylvania had switched to a position of firm adherence to precedents.
Today, it is clear that English case law does not constitute precedents to
American courts, even if they continue to refer to the common history and
their common principles43.
Following this principle, what one court rules the other court cannot
overrule. However, not everything what figures in a judgment is binding
to other judges. Only the ratio decidendi (the holding) - precise legal
considerations in relation of the relevant facts of the case - is binding, and
not the obiter dicta which are general considerations of law.
In respect of the judiciary hierarchy, precedents by superior courts are
binding on inferior courts. Case law developed by other states courts only
constitutes authoritative precedents.
Nonetheless the stare decisis rule, it would be wrong to think that we face
a set system. Superior courts can overrule without harming the res
judicata. In regard to inferior courts, they may not apply a precedent if
being sure that the superior court will affirm the ruling or by
distinguishing relevant and irrelevant facts. The distinguishing method is
mostly not to research legal considerations, but to distinguish – meaning
that in a precedent, one compares the facts with its case, retaining those
which are favorable to the wanted solution and trying to argument that the
facts that are unfavorable are not the same than in casu.
42
Kempin, op.cit., p.102 sq; cf also one of the cited cases: Marks v. Morris
(Virginia, 1809): “It was Common law we adopted and not English
decisions”.
43
Cf e.g. Miranda v. Arizona, 384 US 436 (1966)
238
239
Lectures on the US Legal System
Lecture # 15 - The Judge and the Interpretation of
Law
The first rule of interpretation is known as the plain meaning rule,
traditional in Common law, directing the judge to apply the law but only
the law, with the exception whereas the result of the literal application is
totally erroneous. For example § 1 of the Sherman Act cannot mean what
it says. The statute says that "every" contract that restrains trade is
unlawful. But restraint is the very essence of every contract; read literally,
§ 1 would outlaw the entire body of private contract law. Yet it is that
body of law that establishes the enforceability of commercial agreements
and enables competitive markets to function effectively. Congress,
however, did not intend the text of the Sherman Act to delineate the full
meaning of the statute or its application in concrete situations. The
legislative history makes it perfectly clear that it expected the courts to
give shape to the statute's broad mandate by drawing on common-law
tradition. The Rule of Reason serves that purpose. It is used to give the
Act both flexibility and definition, and its central principle of antitrust
analysis has remained constant. Contrary to its name, the Rule does not
open the field of antitrust inquiry to any argument in favor of a challenged
restraint that may fall within the realm of reason. Instead, it focuses
directly on the challenged restraint's impact on competitive conditions44.
However such a rigid interpretation rule called a legislative reaction: very
detailed statutes, consisting sometimes in hundred of pages, every term
defined precisely.
The real meaning of law is based on the fact that a thing may be within
the letter of the statute and yet not within the statute, because not within
its spirit nor within the intention of its makers. It is not the substitution of
the will of the judge for that of the legislator; for frequently words of
general meaning are used in a statute, words broad enough to include an
act in question, and yet a consideration of the whole legislation, or of the
circumstances surrounding its enactment, or of the absurd results which
follow from giving such broad meaning to the words, makes it
unreasonable to believe that the legislator intended to include the
particular act45. While the real meaning of law doctrine is more a fact44
45
National Society of Professional Engineers v. US, 435 US 6, 37, 38 (1978).
Holy Trinity Church v. US, 143 US 457 (1892).
240
approach of the elaboration of the law, the intentional meaning of law
emphasizes a theological approach to interpretation, looking for the spirit
of law46, even if there is no real frontier between those two interpretation
rules.
46
United Steelworkers of America v. Weber, 443 US 193 (1979).
241
242
Interpretation of Law
Cases and Materials
National Soc. of Professional Engineers v. U. S., 435 U.S. 679
(1978)
April 25, 1978
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.
Lee Loevinger argued the cause for petitioner. With him on the briefs was Martin
Michaelson.
Howard E. Shapiro argued the cause for the United States. With him on the brief
were Solicitor General McCree, Assistant Attorney General Shenefield, and
Robert
B.
Nicholson.
Stevens, J., delivered the opinion of the Court, in which Stewart, White,
Marshall, and Powell, JJ., joined, and in Parts I and III of which Blackmun and
Rehnquist, JJ., joined. Blackmun, J., filed an opinion Concurring in part and
Concurring in the judgment, in which Rehnquist, J., joined, post, p. 699. Burger,
C. J., filed an opinion Concurring in part and Dissenting in part, post, p. 701.
Brennan, J., took no part in the consideration or decision of the case.
The opinion of the court was delivered by: Stevens
The United States brought this civil antitrust suit against petitioner, the National
Society of Professional Engineers, alleging that petitioner's canon of ethics
prohibiting its members from submitting competitive bids for engineering
services suppressed competition in violation of § 1 of the Sherman Act. Petitioner
defended on the ground, inter alia, that under the Rule of Reason the canon was
243
Lectures on the US Legal System
justified because it was adopted by members of a learned profession for the
purpose of minimizing the risk that competition would produce inferior
engineering work endangering the public safety. The District Court, granting an
injunction against the canon, rejected this justification, holding that the canon on
its face violated § 1 of the Sherman Act, thus making it unnecessary to make
findings on the likelihood that competition would produce the dire consequences
envisaged by petitioner. The Court of Appeals affirmed, although modifying the
District Court's injunction in certain respects so that, as modified, it prohibits
petitioner from adopting any official opinion, policy statement, or guideline
stating or implying that competitive bidding is unethical. Held:
1. On its face, the canon in question restrains trade within the meaning of § 1 of
the Sherman Act, and the Rule of Reason, under which the proper inquiry is
whether the challenged agreement is one that promotes, or one that suppresses,
competition, does not support a defense based on the assumption that competition
itself
is
unreasonable.
Pp.
686-696.
(a) The canon amounts to an agreement among competitors to refuse to discuss
prices with potential customers until after negotiations have resulted in the initial
selection of an engineer, and, while it is not price fixing as such, it operates as an
absolute ban on competitive bidding, applying with equal force to both
complicated and simple projects and to both inexperienced and sophisticated
customers.
Pp.
692-693.
(b) Petitioner's affirmative defense confirms rather than refutes the
anticompetitive purpose and effect of its canon, and its attempt to justify, under
the Rule of Reason, the restraint on competition imposed by the canon on the
basis of the potential threat that competition poses to the public safety and the
ethics of the engineering profession is nothing less than a frontal assault on the
basic
policy
of
the
Sherman
Act.
Pp.
693-695.
(c) That engineers are often involved in large-scale projects significantly
affecting the public safety does not justify any exception to the Sherman Act. Pp.
695-696.
(d) While ethical norms may serve to regulate and promote competition in
244
Interpretation of Law
professional services and thus fall within the Rule of Reason, petitioner's
argument here is a far cry from such a position; and, although competition may
not be entirely conducive to ethical behavior, that is not a reason, cognizable
under the Sherman Act, for doing away with competition. P. 696.
2. The District Court's injunction, as modified by the Court of Appeals, does not
abridge
First
Amendment
rights.
Pp.
696-699.
(a) The First Amendment does not "make it . . . impossible ever to enforce laws
against agreements in restraint of trade," Giboney v. Empire Storage & Ice Co.,
336 U.S. 490, 502, and, although the District Court may consider the fact that its
injunction may impinge upon rights that would otherwise be constitutionally
protected, those protections do not prevent it from remedying the antitrust
violations.
Pp.
697-698.
(b) The standard against which the injunction must be Judged is whether the
relief represents a reasonable method of eliminating the consequences of the
illegal conduct, and the injunction meets this standard. P. 698.
(c) If petitioner wishes to adopt some other ethical guideline more closely
confined to the legitimate objective of preventing deceptively low bids, it may
move the District Court to modify its injunction. Pp. 698-699.
MR. JUSTICE STEVENS delivered the opinion of the Court.
This is a civil antitrust case brought by the United States to nullify an
association's canon of ethics prohibiting competitive bidding by its members. The
question is whether the canon may be justified under the Sherman Act, 26 Stat.
209, as amended, 15 U. S. C. § 1 et seq. (1976 ed.), because it was adopted by
members of a learned profession for the purpose of minimizing the risk that
competition would produce inferior engineering work endangering the public
safety. The District Court rejected this justification without making any findings
on the likelihood that competition would produce the dire consequences foreseen
by the association. The Court of Appeals affirmed. We granted certiorari to
245
Lectures on the US Legal System
decide whether the District Court should have considered the factual basis for the
proffered justification before rejecting it. 434 U.S. 815. Because we are satisfied
that the asserted defense rests on a fundamental misunderstanding of the Rule of
Reason
frequently
applied
in
antitrust
litigation,
we
affirm.
I
Engineering is an important and learned profession. There are over 750,000
graduate engineers in the United States, of whom about 325,000 are registered as
professional engineers. Registration requirements vary from State to State, but
usually require the applicant to be a graduate engineer with at least four years of
practical experience and to pass a written examination. About half of those who
are registered engage in consulting engineering on a fee basis. They perform
services in connection with the study, design, and construction of all types of
improvements to real property -- bridges, office buildings, airports, and factories
are examples. Engineering fees, amounting to well over $2 billion each year,
constitute about 5% of total construction costs. In any given facility,
approximately 50% to 80% of the cost of construction is the direct result of work
performed by an engineer concerning the systems and equipment to be
incorporated
in
the
structure.
The National Society of Professional Engineers (Society) was organized in 1935
to deal with the non-technical aspects of engineering practice, including the
promotion of the professional, social, and economic interests of its members. Its
present membership of 69,000 resides throughout the United States and in some
foreign countries. Approximately 12,000 members are consulting engineers who
offer their services to governmental, industrial, and private clients. Some Society
members are principals or chief executive officers of some of the largest
engineering
firms
in
the
country.
The charges of a consulting engineer may be computed in different ways. He may
charge the client a percentage of the cost of the project, may set his fee at his
actual cost plus overhead plus a reasonable profit, may charge fixed rates per
hour for different types of work, may perform an assignment for a specific sum,
or he may combine one or more of these approaches. Suggested fee schedules for
particular types of services in certain areas have been promulgated from time to
time by various local societies. This case does not, however, involve any claim
246
Interpretation of Law
that the National Society has tried to fix specific fees, or even a specific method
of calculating fees. It involves a charge that the members of the Society have
unlawfully agreed to refuse to negotiate or even to discuss the question of fees
until after a prospective client has selected the engineer for a particular project.
Evidence of this agreement is found in § 11 (c) of the Society's Code of Ethics,
adopted
in
July
1964.
The District Court found that the Society's Board of Ethical Review has
uniformly interpreted the "ethical rules against competitive bidding for
engineering services as prohibiting the submission of any form of price
information to a prospective customer which would enable that customer to make
a price comparison on engineering services." If the client requires that such
information be provided, then § 11 (c) imposes an obligation upon the
engineering firm to withdraw from consideration for that job. The Society's Code
of Ethics thus "prohibits engineers from both soliciting and submitting such price
information," 389 F.Supp. 1193, 1206 (DC 1974), and seeks to preserve the
profession's "traditional" method of selecting professional engineers. Under the
traditional method, the client initially selects an engineer on the basis of
background
and
reputation,
not
price.
In 1972 the Government filed its complaint against the Society alleging that
members had agreed to abide by canons of ethics prohibiting the submission of
competitive bids for engineering services and that, in consequence, price
competition among the members had been suppressed and customers had been
deprived of the benefits of free and open competition. The complaint prayed for
an
injunction
terminating
the
unlawful
agreement.
In its answer the Society admitted the essential facts alleged by the Government
and pleaded a series of affirmative defenses, only one of which remains in issue.
In that defense, the Society averred that the standard set out in the Code of Ethics
was reasonable because competition among professional engineers was contrary
to the public interest. It was averred that it would be cheaper and easier for an
engineer "to design and specify inefficient and unnecessarily expensive structures
and methods of construction." Accordingly, competitive pressure to offer
engineering services at the lowest possible price would adversely affect the
quality of engineering. Moreover, the practice of awarding engineering contracts
to the lowest bidder, regardless of quality, would be dangerous to the public
health, safety, and welfare. For these reasons, the Society claimed that its Code of
Ethics was not an "unreasonable restraint of interstate trade or commerce."
247
Lectures on the US Legal System
The parties compiled a voluminous discovery and trial record. The District Court
made detailed findings about the engineering profession, the Society, its
members' participation in interstate commerce, the history of the ban on
competitive bidding, and certain incidents in which the ban appears to have been
violated or enforced. The District Court did not, however, make any finding on
the question whether, or to what extent, competition had led to inferior
engineering work which, in turn, had adversely affected the public health, safety,
or welfare. That inquiry was considered unnecessary because the court was
convinced that the ethical prohibition against competitive bidding was "on its
face a tampering with the price structure of engineering fees in violation of § 1 of
the
Sherman
Act."
389
F.Supp.,
at
1200.
Although it modified the injunction entered by the District Court, the Court of
Appeals affirmed its Conclusion that the agreement was unlawful on its face and
therefore "illegal without regard to claimed or possible benefits." 181 U. S. App.
D.C.
41,
47,
555
F.2d
978,
984.
In Goldfarb v. Virginia State Bar, 421 U.S. 773, the Court held that a bar
association's rule prescribing minimum fees for legal services violated § 1 of the
Sherman Act. In that opinion the Court noted that certain practices by members
of a learned profession might survive scrutiny under the Rule of Reason even
though they would be viewed as a violation of the Sherman Act in another
context.
The
Court
said:
"The fact that a restraint operates upon a profession as distinguished from a
business is, of course, relevant in determining whether that particular restraint
violates the Sherman Act. It would be unrealistic to view the practice of
professions as interchangeable with other business activities, and automatically to
apply to the professions antitrust concepts which originated in other areas. The
public service aspect, and other features of the professions may require that a
particular practice, which could properly be viewed as a violation of the Sherman
Act in another context, be treated differently. We intimate no view on any other
situation than the one with which we are confronted today." 421 U.S., at 788-789,
n.
17.
Relying heavily on this footnote, and on some of the major cases applying a Rule
of Reason -- principally Mitchel v. Reynolds, 1 P. Wms. 181, 24 Eng. Rep. 347
(1711); Standard Oil Co. v. United States, 221 U.S. 1; Chicago Board of Trade v.
248
Interpretation of Law
United States, 246 U.S. 231; and Continental T. V., Inc. v. GTE Sylvania Inc.,
433 U.S. 36 -- petitioner argues that its attempt to preserve the profession's
traditional method of setting fees for engineering services is a reasonable method
of forestalling the public harm which might be produced by unrestrained
competitive bidding. To evaluate this argument it is necessary to identify the
contours of the Rule of Reason and to discuss its application to the kind of
justification
asserted
by
petitioner.
A. The Rule of Reason.
One problem presented by the language of § 1 of the Sherman Act is that it
cannot mean what it says. The statute says that "every" contract that restrains
trade is unlawful. But, as Mr. Justice Brandeis perceptively noted, restraint is the
very essence of every contract; read literally, § 1 would outlaw the entire body of
private contract law. Yet it is that body of law that establishes the enforceability
of commercial agreements and enables competitive markets -- indeed, a
competitive
economy
-to
function
effectively.
Congress, however, did not intend the text of the Sherman Act to delineate the
full meaning of the statute or its application in concrete situations. The legislative
history makes it perfectly clear that it expected the courts to give shape to the
statute's broad mandate by drawing on common-law tradition. The Rule of
Reason, with its origins in common-law precedents long antedating the Sherman
Act, has served that purpose. It has been used to give the Act both flexibility and
definition, and its central principle of antitrust analysis has remained constant.
Contrary to its name, the Rule does not open the field of antitrust inquiry to any
argument in favor of a challenged restraint that may fall within the realm of
reason. Instead, it focuses directly on the challenged restraint's impact on
competitive
conditions.
This principle is apparent in even the earliest of cases applying the Rule of
Reason, Mitchel v. Reynolds, supra. Mitchel involved the enforceability of a
promise by the seller of a bakery that he would not compete with the purchaser of
his business. The covenant was for a limited time and applied only to the area in
which the bakery had operated. It was therefore upheld as reasonable, even
though it deprived the public of the benefit of potential competition. The long-run
benefit of enhancing the marketability of the business itself -- and thereby
249
Lectures on the US Legal System
providing incentives to develop such an enterprise -- outweighed the temporary
and
limited
loss
of
competition.
The Rule of Reason suggested by Mitchel v. Reynolds has been regarded as a
standard for testing the enforceability of covenants in restraint of trade which are
ancillary to a legitimate transaction, such as an employment contract or the sale
of a going business. Judge (later Mr. Chief Justice) Taft so interpreted the Rule in
his classic rejection of the argument that competitors may lawfully agree to sell
their goods at the same price as long as the agreed-upon price is reasonable.
United States v. Addyston Pipe & Steel Co., 85 F. 271, 282-283 (CA6 1898),
aff'd, 175 U.S. 211. That case, and subsequent decisions by this Court,
unequivocally foreclose an interpretation of the Rule as permitting an inquiry into
the reasonableness of the prices set by private agreement.
The early cases also foreclose the argument that because of the special
characteristics of a particular industry, monopolistic arrangements will better
promote trade and commerce than competition. United States v. Trans-Missouri
Freight Assn., 166 U.S. 290; United States v. Joint Traffic Assn., 171 U.S. 505,
573-577. That kind of argument is properly addressed to Congress and may
justify an exemption from the statute for specific industries, but it is not permitted
by the Rule of Reason. As the Court observed in Standard Oil Co. v. United
States, 221 U.S., at 65, "restraints of trade within the purview of the statute . . . be
taken out of that category by indulging in general reasoning as to the expediency
or nonexpediency of having made the contracts or the wisdom or want of wisdom
of
the
statute
which
prohibited
their
being
made."
The test prescribed in Standard Oil is whether the challenged contracts or acts
"were unreasonably restrictive of competitive conditions." Unreasonableness
under that test could be based either (1) on the nature or character of the
contracts, or (2) on surrounding circumstances giving rise to the inference or
presumption that they were intended to restrain trade and enhance prices. Under
either branch of the test, the inquiry is confined to a consideration of impact on
competitive
conditions.
In this respect the Rule of Reason has remained faithful to its origins. From Mr.
Justice Brandeis' opinion for the Court in Chicago Board of Trade to the Court
opinion written by MR. JUSTICE POWELL in Continental T. V., Inc., the Court
has adhered to the position that the inquiry mandated by the Rule of Reason is
whether the challenged agreement is one that promotes competition or one that
suppresses competition. "The true test of legality is whether the restraint imposed
250
Interpretation of Law
is such as merely regulates and perhaps thereby promotes competition or whether
it is such as may suppress or even destroy competition." 246 U.S., at 238, quoted
in
433
U.S.,
at
49
n.
15.
There are, thus, two complementary categories of antitrust analysis. In the first
category are agreements whose nature and necessary effect are so plainly
anticompetitive that no elaborate study of the industry is needed to establish their
illegality -- they are "illegal per se." In the second category are agreements whose
competitive effect can only be evaluated by analyzing the facts peculiar to the
business, the history of the restraint, and the reasons why it was imposed. In
either event, the purpose of the analysis is to form a judgment about the
competitive significance of the restraint; it is not to decide whether a policy
favoring competition is in the public interest, or in the interest of the members of
an industry. Subject to exceptions defined by statute, that policy decision has
been
made
by
the
Congress.
B. The Ban on Competitive Bidding.
Price is the "central nervous system of the economy," United States v. SoconyVacuum Oil Co., 310 U.S. 150, 226 n. 59, and an agreement that " with the
setting of price by free market forces" is illegal on its face. United States v.
Container Corp., 393 U.S. 333, 337. In this case we are presented with an
agreement among competitors to refuse to discuss prices with potential customers
until after negotiations have resulted in the initial selection of an engineer. While
this is not price fixing as such, no elaborate industry analysis is required to
demonstrate the anticompetitive character of such an agreement. It operates as an
absolute ban on competitive bidding, applying with equal force to both
complicated and simple projects and to both inexperienced and sophisticated
customers. As the District Court found, the ban "impedes the ordinary give and
take of the market place," and substantially deprives the customer of "the ability
to utilize and compare prices in selecting engineering services." 404 F.Supp. 457,
460. On its face, this agreement restrains trade within the meaning of § 1 of the
Sherman
Act.
The Society's affirmative defense confirms rather than refutes the anticompetitive
purpose and effect of its agreement. The Society argues that the restraint is
justified because bidding on engineering services is inherently imprecise, would
lead to deceptively low bids, and would thereby tempt individual engineers to do
inferior work with consequent risk to public safety and health. The logic of this
251
Lectures on the US Legal System
argument rests on the assumption that the agreement will tend to maintain the
price level; if it had no such effect, it would not serve its intended purpose. The
Society nonetheless invokes the Rule of Reason, arguing that its restraint on price
competition ultimately inures to the public benefit by preventing the production
of inferior work and by insuring ethical behavior. As the preceding Discussion of
the Rule of Reason reveals, this Court has never accepted such an argument.
It may be, as petitioner argues, that competition tends to force prices down and
that an inexpensive item may be inferior to one that is more costly. There is some
risk, therefore, that competition will cause some suppliers to market a defective
product. Similarly, competitive bidding for engineering projects may be
inherently imprecise and incapable of taking into account all the variables which
will be involved in the actual performance of the project. Based on these
considerations, a purchaser might conclude that his interest in quality -- which
may embrace the safety of the end product -- outweighs the advantages of
achieving cost savings by pitting one competitor against another. Or an individual
vendor might independently refrain from price negotiation until he has satisfied
himself that he fully understands the scope of his customers' needs. These
decisions might be reasonable; indeed, petitioner has provided ample
documentation for that thesis. But these are not reasons that satisfy the Rule; nor
are
such
individual
decisions
subject
to
antitrust
attack.
The Sherman Act does not require competitive bidding; it prohibits unreasonable
restraints on competition. Petitioner's ban on competitive bidding prevents all
customers from making price comparisons in the initial selection of an engineer,
and imposes the Society's views of the costs and benefits of competition on the
entire marketplace. It is this restraint that must be justified under the Rule of
Reason, and petitioner's attempt to do so on the basis of the potential threat that
competition poses to the public safety and the ethics of its profession is nothing
less than a frontal assault on the basic policy of the Sherman Act.
The Sherman Act reflects a legislative judgment that ultimately competition will
produce not only lower prices, but also better goods and services. "The heart of
our national economic policy long has been faith in the value of competition."
Standard Oil Co. v. FTC, 340 U.S. 231, 248. The assumption that competition is
the best method of allocating resources in a free market recognizes that all
elements of a bargain -- quality, service, safety, and durability -- and not just the
immediate cost, are favorably affected by the free opportunity to select among
alternative offers. Even assuming occasional exceptions to the presumed
consequences of competition, the statutory policy precludes inquiry into the
question
whether
competition
is
good
or
bad.
252
Interpretation of Law
The fact that engineers are often involved in large-scale projects significantly
affecting the public safety does not alter our analysis. Exceptions to the Sherman
Act for potentially dangerous goods and services would be tantamount to a repeal
of the statute. In our complex economy the number of items that may cause
serious harm is almost endless -- automobiles, drugs, foods, aircraft components,
heavy equipment, and countless others, cause serious harm to individuals or to
the public at large if defectively made. The judiciary cannot indirectly protect the
public against this harm by conferring monopoly privileges on the manufacturers.
By the same token, the cautionary footnote in Goldfarb, 421 U.S., at 788-789, n.
17, quoted (supra) , cannot be read as fashioning a broad exemption under the
Rule of Reason for learned professions. We adhere to the view expressed in
Goldfarb that, by their nature, professional services may differ significantly from
other business services, and, accordingly, the nature of the competition in such
services may vary. Ethical norms may serve to regulate and promote this
competition, and thus fall within the Rule of Reason. But the Society's argument
in this case is a far cry from such a position. We are faced with a contention that a
total ban on competitive bidding is necessary because otherwise engineers will be
tempted to submit deceptively low bids. Certainly, the problem of professional
deception is a proper subject of an ethical canon. But, once again, the equation of
competition with deception, like the similar equation with safety hazards, is
simply too broad; we may assume that competition is not entirely conducive to
ethical behavior, but that is not a reason, cognizable under the Sherman Act, for
doing
away
with
competition.
In sum, the Rule of Reason does not support a defense based on the assumption
that competition itself is unreasonable. Such a view of the Rule would create the
"sea of doubt" on which Judge Taft refused to embark in Addyston, 85 F., at 284,
and
which
this
Court
has
firmly
avoided
ever
since.
III
The judgment entered by the District Court, as modified by the Court of Appeals,
prohibits the Society from adopting any official opinion, policy statement, or
guideline stating or implying that competitive bidding is unethical. Petitioner
argues that this judgment abridges its First Amendment rights. We find no merit
in
this
contention.
253
Lectures on the US Legal System
Having found the Society guilty of a violation of the Sherman Act, the District
Court was empowered to fashion appropriate restraints on the Society's future
activities both to avoid a recurrence of the violation and to eliminate its
consequences. See, e. g., International Salt Co. v. United States, 332 U.S. 392,
400-401; United States v. Glaxo Group, Ltd., 410 U.S. 52, 64. While the resulting
order may curtail the exercise of liberties that the Society might otherwise enjoy,
that is a necessary and, in cases such as this, unavoidable consequence of the
violation. Just as an injunction against price fixing abridges the freedom of
businessmen to talk to one another about prices, so too the injunction in this case
must restrict the Society's range of expression on the ethics of competitive
bidding. The First Amendment does not "make it . . . impossible ever to enforce
laws against agreements in restraint of trade . . . ." Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 502. In fashioning a remedy, the District Court may, of
course, consider the fact that its injunction may impinge upon rights that would
otherwise be constitutionally protected, but those protections do not prevent it
from
remedying
the
antitrust
violations.
The standard against which the order must be Judged is whether the relief
represents a reasonable method of eliminating the consequences of the illegal
conduct. We agree with the Court of Appeals that the injunction, as modified,
meets this standard. While it goes beyond a simple proscription against the
precise conduct previously pursued, that is entirely appropriate.
"The District Court is not obliged to assume, contrary to common experience, that
a violator of the antitrust laws will relinquish the fruits of his violation more
completely than the court requires him to do. And advantages already in hand
may be held by methods more subtle and informed, and more difficult to prove,
than those which, in the first place, win a market. When the purpose to restrain
trade appears from a clear violation of law, it is not necessary that all of the
untraveled roads to that end be left open and that only the worn one be closed."
International
Salt
Co.,
supra,
at
400.
The Society apparently fears that the District Court's injunction, if broadly read,
will block legitimate paths of expression on all ethical matters relating to bidding.
But the answer to these fears is, as the Court held in International Salt, that the
burden is upon the proved transgressor "to bring any proper claims for relief to
the court's attention." Ibid. In this case, the Court of Appeals specifically stated
254
Interpretation of Law
that " the Society wishes to adopt some other ethical guideline more closely
confined to the legitimate objective of preventing deceptively low bids, it may
move the district court for modification of the decree." 181 U. S. App. D.C., at
46, 555 F.2d, at 983. This is, we believe, a proper approach, adequately
protecting the Society's interests. We therefore reject petitioner's attack on the
District
Court's
order.
Affirmed.
Holy Trinity Church v. US
Mr. Justice BREWER delivered the opinion of the court.
Plaintiff in error is a corporation duly organized and incorporated as a religious
society under the laws of the state of New York. E. Walpole Warren was, prior to
September, [143 U.S. 457, 458] 1887, an alien residing in England. In that month
the plaintiff in error made a contract with him, by which he was to remove to the
city of New York, and enter into its service as rector and pastor; and, in
pursuance of such contract, Warren did so remove and enter upon such service. It
is claimed by the United States that this contract on the part of the plaintiff in
error was forbidden by chapter 164, 23 St. p. 332; and an action was commenced
to recover the penalty prescribed by that act. The circuit court held that the
contract was within the prohibition of the statute, and rendered judgment
accordingly, (36 Fed. Rep. 303,) and the single question presented for our
determination is whether it erred in that conclusion.
The first section describes the act forbidden, and is in these words:
'Be it enacted by the senate and house of representatives of the United States of
America, in congress assembled, that from and after the passage of this act it shall
be unlawful for any person, company, partnership, or corporation, in any manner
whatsoever, to prepay the transportation, or in any way assist or encourage the
importation or migration, of any alien or aliens, any foreigner or foreigners, into
the United States, its territories, or the District of Columbia, under contract or
agreement, parol or special, express or implied, made previous to the inportation
or migration of such alien or aliens, foreigner or foreigners, to perform labor or
service of any kind in the United States, its territories, or the District of
Columbia.'
It must be conceded that the act of the corporation is within the letter of this
section, for the relation of rector to his church is one of service, and implies labor
on the one side with compensation on the other. Not only are the general words
255
Lectures on the US Legal System
'labor' and 'service' both used, but also, as it [*512] were to guard against any
narrow interpretation and emphasize a breadth of meaning, to them is added 'of
any kind;' and, further, as noticed by the circuit judge in his opinion, the fifth
section, which makes specific exceptions, among them professional actors,
artists, lecturers, singers, and domestic [143 U.S. 457, 459] servants, strengthens
the idea that every other kind of labor and service was intended to be reached by
the first section. While there is great force to this reasoning, we cannot think
congress intended to denounce with penalties a transaction like that in the present
case. It is a familiar rule that a thing may be within the letter of the statute and yet
not within the statute, because not within its spirit nor within the intention of its
makers. This has been often asserted, and the Reports are full of cases illustrating
its application. This is not the substitution of the will of the judge for that of the
legislator; for frequently words of general meaning are used in a statute, words
broad enough to include an act in question, and yet a consideration of the whole
legislation, or of the circumstances surrounding its enactment, or of the absurd
results which follow from giving such broad meaning to the words, makes it
unreasonable to believe that the legislator intended to include the particular act.
As said in Stradling v. Morgan, Plow. 205: 'From which cases it appears that the
sages of the law heretofore have construed statutes quite contrary to the letter in
some appearance, and those statutes which comprehend all things in the letter
they have expounded to extend to but some things, and those which generally
prohibit all people from doing such an act they have interpreted to permit some
people to do it, and those which include every person in the letter they have
adjudged to reach to some persons only, which expositions have always been
founded upon the intent of the legislature, which they have collected sometimes
by considering the cause and necessity of making the act, sometimes by
comparing one part of the act with another, and sometimes by foreign
circumstances.'
In Pier Co. v. Hannam, 3 Barn. & Ald. 266, ABBOTT, C. J., quotes from Lord
Coke as follows: 'Acts of parliament are to be so construed as no man that is
innocent or free from injury or wrong be, by a literal construction, punished or
endangered.' In the case of State v. Clark, 29 N. J. Law, 96, 99, it appeared that
an act had been passed, making it a misdemeanor to willfully break down a fence
in the possession of another person. Clark was indicted [143 U.S. 457, 460] under
that statute. The defense was that the act of breaking down the fence, though
willful, was in the exercise of a legal right to go upon his own lands. The trial
court rejected the testimony offered to sustain the defense, and the supreme court
held that this ruling was error. In its opinion the court used this language: 'The act
of 1855, in terms, makes the willful opening, breaking down, or injuring of any
fences belonging to or in the possession of any other person a misdemeanor. In
what sense is the term 'willful' used? In common parlance, 'willful' is used in the
sense of 'intentional,' as distinguished from 'accidental' or 'involuntary.' Whatever
one does intentionally, he does willfully. Is it used in that sense in this act? Did
the legislature intend to make the intentional opening of a fence for the purpose
of going upon the land of another indictable, if done by permission or for a lawful
purpose? * * * We cannot suppose such to have been the actual intent. To adopt
256
Interpretation of Law
such a construction would put a stop to the ordinary business of life. The
language of the act, if construed literally, evidently leads to an absurd result. If a
literal construction of the words of a statute be absurd, the act must be so
construed as to avoid the absurdity. The court must restrain the words. The object
designed to be reached by the act must limit and control the literal import of the
terms and phrases employed.' In U. S. v. Kirby, 7 Wall. 482, 486, the defendants
were indicted for the violation of an act of congress providing 'that if any person
shall knowingly and willfully obstruct or retard the passage of the mail, or of any
driver or carrier, or of any horse or carriage carrying the same, he shall, upon
conviction, for every such offense, pay a fine not exceeding one hundred dollars.'
The specific charge was that the defendants knowingly and willfully retarded the
passage of one Farris, a carrier of the mail, while engaged in the performance of
his duty, and also in like manner retarded the steam-boat Gen. Buell, at that time
engaged in carrying the mail. To this indictment the defendants pleaded specially
that Farris had been indicted for murder by a court of competent authority in
Kentucky; that a bench-warrant had been issued and [143 U.S. 457, 461] placed
in the hands of the defendant Kirby, the sheriff of the county, commanding him to
arrest Farris, and bring him before the court to answer to the indictment; and that,
in obedience to this warrant, he and the other defendants, as his posse, entered
upon the steamboat Gen. Buell and arrested Farris, and used only such force as
was necessary to accomplish that arrest. The question as to the sufficiency of this
plea was certified to this court, and it was held that the arrest of Farris upon the
warrant from the state court was not an obstruction of the mail, or the retarding of
the passage of a carrier of the mail, within the meaning of the act. In its opinion
the court says: 'All laws should receive a sensible construction. General terms
should be so limited in their application as not to lead to injustice, oppression, or
an absurd consequence. It will always, therefore, be presumed that the legislature
intended exceptions to its language which would avoid results of this character.
The reason of the law in such cases should prevail over its letter. The common
sense of man approves the judgment mentioned by Puffendorf, that the Bolognian
law which enacted 'that whoever drew blood in the streets should be punished
with the utmost severity,' did not extend to the surgeon who opened the vein of a
person that fell down in the street in a fit. The same [*513] common sense
accepts the ruling, cited by Plowden, that the statute of 1 Edw. II., which enacts
that a prisoner who breaks prison shall be guilty of felony, does not extend to a
prisoner who breaks out when the prison is on fire, 'for he is not to be hanged
because he would not stay to be burnt.' And we think that a like common sense
will sanction the ruling we make, that the act of congress which punishes the
obstruction or retarding of the passage of the mail, or of its carrier, does not apply
to a case of temporary detention of the mail caused by the arrest of the carrier
upon an indictment for murder.' The following cases may also be cited: Henry v.
Tilson, 17 Vt. 479; Ryegate v. Wardsboro, 30 Vt. 743; Ex parte Ellis, 11 Cal.
220; Ingraham v. Speed, 30 Miss. 410; Jackson v. Collins, 3 Cow. 89; People v.
Insurance Co., 15 Johns. 358; Burch v. Newbury, 10 N. Y. 374; People v. [143
U.S. 457, 462] Commissioners, 95 N. Y. 554, 558; People v. Lacombe, 99 N. Y.
43, 49, 1 N. E. Rep. 599; Chesapeake & Ohio Canal Co. v. Baltimore & Ohio R.
257
Lectures on the US Legal System
Co., 4 Gill & J. 152; Osgood v. Breed, 12 Mass. 525, 530; Wilbur v. Crane, 13
Pick. 284; Oates v. Bank, 100 U. S. 239.
Among other things which may be considered in determining the intent of the
legislature is the title of the act. We do not mean that it may be used to add to or
take from the body of the statute, (Hadden v. Collector, 5 Wall. 107,) but it may
help to interpret its meaning. In the case of U. S. v. Fisher, 2 Cranch, 358, 386,
Chief Justice MARSHALL said: 'On the infiuence which the title ought to have
in construing the enacting clauses, much has been said, and yet it is not easy to
discern the point of difference between the opposing counsel in this respect.
Neither party contends that the title of an act can control plain words in the body
of the statute; and neither denies that, taken with other parts, it may assist in
removing ambiguities. Where the intent is plain, nothing is left to construction.
Where the mind labors to discover the design of the legislature, it seizes
everything from which aid can be derived; and in such case the title claims a
degree of notice, and will have its due share of consideration.' And in the case of
U. S. v. Palmer, 3 Wheat. 610, 631, the same judge applied the doctrine in this
way: 'The words of the section are in terms of unlimited extent. The words 'any
person or persons' are broad enough to comprehend every human being. But
general words must not only be limited to cases within the jurisdiction of the
state, but also to those objects to which the legislature intended to apply them.
Did the legislature intend to apply these words to the subjects of a foreign power,
who in a foreign ship may commit murder or robbery on the high seas? The title
of an act cannot control its words, but may furnish some aid in showing what was
in the mind of the legislature. The title of this act is, 'An act for the punishment of
certain crimes against the United States.' It would seem that offenses against the
United States, not offenses against the human race, were the crimes which the
legislature intended by this law to punish.'
[143 U.S. 457, 463] It will be seen that words as general as those used in the first
section of this act were by that decision limited, and the intent of congress with
respect to the act was gathered partially, at least, from its title. Now, the title of
this act is, 'An act to prohibit the importation and migration of foreigners and
aliens under contract or agreement to perform labor in the United States, its
territories, and the District of Columbia. Obviously the thought expressed in this
reaches only to the work of the manual laborer, as distinguished from that of the
professional man. No one reading such a title would suppose that congress had in
its mind any purpose of staying the coming into this country of ministers of the
gospel, or, indeed, of any class whose toil is that of the brain. The common
understanding of the terms 'labor' and 'laborers' does not include preaching and
preachers, and it is to be assumed that words and phrases are used in their
ordinary meaning. So whatever of light is thrown upon the statute by the
language of the title indicates an exclusion from its penal provisions of all
contracts for the employment of ministers, rectors, and pastors.
Again, another guide to the meaning of a statute is found in the evil which it is
designed to remedy; and for this the court properly looks at contemporaneous
events, the situation as it existed, and as it was pressed upon the attention of the
258
Interpretation of Law
legislative body. U. S. v. Railroad Co., 91 U. S. 72, 79. The situation which
called for this statute was briefly but fully stated by Mr. Justice BROWN when,
as district judge, he decided the case of U. S. v. Craig, 28 Fed. Rep. 795, 798:
'The motives and history of the act are matters of common knowledge. It had
become the practice for large capitalists in this country to contract with their
agents abroad for the shipment of great numbers of an ignorant and servile class
of foreign laborers, under contracts by which the employer agreed, upon the one
hand, to prepay their passage, while, upon the other hand, the laborers agreed to
work after their arrival for a certain time at a low rate of wages. The effect of this
was to break down the labor market, and to reduce other laborers engaged in like
occupations to the level [143 U.S. 457, 464] of the assisted immigrant. The evil
finally became so flagrant that an appeal was made to congress for relief by the
passage of the act in question, the design of which was to raise the standard of
foreign immigrants, and to discountenance the migration of those who had not
sufficient means in their own hands, or those of their friends, to pay their
passage.'
It appears, also, from the petitions, and in the testimony presented before the
committees of congress, that it was this cheap, unskilled labor which was making
the trouble, and the influx of which congress sought to prevent. It was never
suggested that we had in this country a surplus of brain toilers, and, least of all,
that the market for the services of Christian ministers was depressed by foreign
competition. Those were matters to which the attention of congress, or of the
people, was not directed. So far, then, as the evil which [*514] was sought to be
remedied interprets the statute, it also guides to an exclusion of this contract from
the penalties of the act.
A singular circumstance, throwing light upon the intent of congress, is found in
this extract from the report of the senate committee on education and labor,
recommending the passage of the bill: 'The general facts and considerations
which induce the committee to recommend the passage of this bill are set forth in
the report of the committee of the house. The committee report the bill back
without amendment, although there are certain features thereof which might well
be changed or modified, in the hope that the bill may not fail of passage during
the present session. Especially would the committee have otherwise
recommended amendments, substituting for the expression, 'labor and service,'
whenever it occurs in the body of the bill, the words 'manual labor' or 'manual
service,' as sufficiently broad to accomplish the purposes of the bill, and that such
amendments would remove objections which a sharp and perhaps unfriendly
criticism may urge to the proposed legislation. The committee, however,
believing that the bill in its present form will be construed as including only those
whose labor or service is manual in character, and being very desirous that the
bill become a law before the adlournment, have reported the bill without [143
U.S. 457, 465] change.' Page 6059, Congressional Record, 48th Cong. And,
referring back to the report of the committee of the house, there appears this
language: 'It seeks to restrain and prohibit the immigration or importation of
laborers who would have never seen our shores but for the inducements and
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allurements of men whose only object is to obtain labor at the lowest possible
rate, regardless of the social and material well-being of our own citizens, and
regardless of the evil consequences which result to American laborers from such
immigration. This class of immigrants care nothing about our institutions, and in
many instances never even heard of them. They are men whose passage is paid by
the importers. They come here under contract to labor for a certain number of
years. They are ignorant of our social condition, and, that they may remain so,
they are isolated and prevented from coming into contact with Americans. They
are generally from the lowest social stratum, and live upon the coarsest food, and
in hovels of a character before unknown to American workmen. They, as a rule,
do not become citizens, and are certainly not a desirable acquisition to the body
politic. The inevitable tendency of their presence among us is to degrade
American labor, and to reduce it to the level of the imported pauper labor.' Page
5359, Congressional Record, 48th Cong.
We find, therefore, that the title of the act, the evil which was intended to be
remedied, the circumstances surrounding the appeal to congress, the reports of
the committee of each house, all concur in affirming that the intent of congress
was simply to stay the influx of this cheap, unskilled labor.
But, beyond all these matters, no purpose of action against religion can be
imputed to any legislation, state or national, because this is a religious people.
This is historically true. From the discovery of this continent to the present hour,
there is a single voice making this affirmation. The commission to Christopher
Columbus, prior to his sail westward, is from "Ferdinand and Isabella, by the
grace of God, king and queen of Castile," etc., and recites that "it is hoped that by
God's assistance some of the continents and islands in the [496] ocean will be
discovered," etc. The first colonial grant, that made to Sir Walter Raleigh in 1584,
was from "Elizabeth, by the grace of God, of England, Fraunce, and Ireland,
queene, defender of the faith," etc.; and the grant authorizing him to enact statutes
of the government of the proposed colony provided that "they be not against the
true Christian faith nowe professed in the Church of England." The first charter of
Virginia, granted by King James I. in 1606, after reciting the application of
certain parties for a charter, commenced the grant in these words: "We, greatly
commending, and graciously accepting of, their Desires for the Furtherance of so
noble a Work, which may, by the Providence of Almighty God, hereafter tend to
the Glory of His Divine Majesty, in propagating of Christian Religion to such
People, as yet live in Darkness and miserable Ignorance of the true Knowledge
and Worship of God, and may in time bring the Infidels and Savages, living in
those parts, to human Civility, and to a settled and quiet Government; DO, by
these our Letters-Patents, graciously accept of, and agree to, their humble and
well-intentioned Desires."
Language of similar import may be found in the subsequent charters of that
colony from the same king, in 1609 and 1611; and the same is true of the various
charters granted to the other colonies. In language more or less emphatic is the
establishment of the Christian religion declared to be one of the purposes of the
grant. The celebrated compact made by the pilgrims in the Mayflower, 1620,
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recites: "Having undertaken for the Glory of God, and Advancement of the
Christian Faith, and the Honour of our King and Country, a Voyage to plant the
first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and
mutually, in the Presence of God and one another, covenant and combine
ourselves together into a civil Body Politick, for our better Ordering and
Preservation, and Furtherance of the Ends aforesaid."
The fundamental orders of Connecticut, under which a provisional government
was instituted in 1638-39, commence with this declaration: "Forasmuch as it hath
pleased the Allmighty God by the wise disposition of his diuyne pruidence [143
U.S. 457, 467] so to order and dispose of things that we the Inhabitants and
Residents of Windsor, Hartford, and Wethersfield are now cohabiting and
dwelling in and vppon the River of Conectecotte and the Lands thereunto
adioyneing; And well knowing where a people are gathered togather the word of
{515} God requires that to mayntayne the peace and union of such a people there
should be an orderly and decent Gouerment established according to God, to
order and dispose of the affayres of the people at all seasons as occation shall
require; doe therefore assotiate and conioyne our selues to be as one Publike State
or Commonwelth; and doe, for our selues and our Successors and such as shall be
adioyned to vs att any tyme hereafter, enter into Combination and Confederation
togather, to mayntayne and presearue the liberty and purity of the gospell of our
Lord Jesus wch we now prfesse, as also the disciplyne of the Churches, wch
according to the truth of the said gospell is now practised amongst vs."
In the charter of privileges granted by William Penn to the province of
Pennsylvania, in 1701, it is recited: "Because no People can be truly happy,
though under the greatest Enjoyment of Civil Liberties, if abridged of the
Freedom of their Consciences, as to their Religious Profession and Worship; And
Almighty God being the only Lord of Conscience, Father of Lights and Spirits;
and the Author as well as Object of all divine Knowledge, Faith, and Worship,
who only doth enlighten the Minds, and persuade and convince the
Understandings of People, I do hereby grant and declare," etc.
Coming nearer to the present time, the declaration of independence recognizes
the presence of the Divine in human affairs in these words: "We hold these truths
to be self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness." "We, therefore, the Representatives of the united States
of America, in General Congress, Assembled, appealing to the Supreme Judge of
the world for the rectitude of our intentions, do, in the Name and by Authority of
the good People of these Colonies, solemnly publish and declare," etc.; "And for
the [143 U.S. 457, 468] support of this Declaration, with a firm reliance on the
Protection of Divine Providence, we mutually pledge to each other our Lives, our
Fortunes, and our sacred Honor."
If we examine the constitutions of the various states, we find in them a constant
recognition of religious obligations. Every constitution of every one of the 44
states contains language which, either directly or by clear implication, recognizes
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a profound reverence for religion, and an assumption that its influence in all
human affairs is essential to the well-being of the community. This recognition
may be in the preamble, such as is found in the constitution of Illinois, 1870:
"We, the people of the state of Illinois, grateful to Almighty God for the civil,
political, and religious liberty which He hath so long permitted us to enjoy, and
looking to Him for a blessing upon our endeavors to secure and transmit the same
unimpaired to succeeding generations," etc.
It may be only in the familiar requisition that all officers shall take an oath
closing with the declaration, "so help me God." It may be in clauses like that of
the constitution of Indiana, 1816, art. 11, §4: "The manner of administering an
oath or affirmation shall be such as is most consistent with the conscience of the
deponent, and shall be esteemed the most solemn appeal to God." Or in
provisions such as are found in articles 36 and 37 of the declaration of the rights
of the constitution of Maryland, (1867): "That, as it is the duty of every man to
worship God in such manner as he thinks most acceptable to Him, all persons are
equally entitled to protection in their religious liberty: wherefore, no person
ought, by any law, to be molested in his person or estate on account of his
religious persuasion or profession, or for his religious practice, unless, under the
color of religion, he shall disturb the good order, peace, or safety of the state, or
shall infringe the laws of morality, or injure others in their natural, civil, or
religious rights; nor ought any person to be compelled to frequent or maintain or
contribute, unless on contract, to maintain any place of worship or any ministry;
nor shall any person, otherwise competent, be deemed incompetent as a witness
or juror on account of his religious belief: provided, he [143 U.S. 457, 469]
believes in the existence of God, and that, under his dispensation, such person
will be held morally accountable for his acts, and be rewarded or punished
therefor, either in this world or the world to come. That no religious test ought
ever to be required as a qualification for any office or profit or trust in this state,
other than a declaration of belief in the existence of God; nor shall the legislature
prescribe any other oath of office than the oath prescribed by this constitution."
Or like that in articles 2 and 3 of part 1 of the constitution of Massachusetts,
(1780:) "It is the right as well as the duty of all men in society publicly, and at
stated seasons, to worship the Supreme Being, the Great Creator and Preserver of
the universe. * * * As the happiness of a people and the good order and
preservation of civil government essentially depend upon piety, religion, and
morality, and as these cannot be generally diffused through a community but by
the institution of the public worship of God and of public instructions in piety,
religion, and morality: Therefore, to promote their happiness, and to secure the
good order and preservation of their government, the people of this
commonwealth have a right to invest their legislature with power to authorize and
require, and the legislature shall, from time to time, authorize and require, the
several towns, parishes, precincts, and other bodies politic or religious societies to
make suitable provision, at their own expense, for the institution of the public
worship of God and for the support and maintenance of public Protestant teachers
of piety, religion and morality, in all cases where such provisions shall not be
made voluntarily." Or, as in sections 5 and 14 of article 7 of the constitution of
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Mississippi, (1832:) "No person who denies the being of a God, or a future state
of rewards and punishments, shall hold any office in the civil department of this
state. * * * Religion {516} morality, and knowledge being necessary to good
government, the preservation of liberty, and the happiness of mankind, schools,
and the means of education, shall forever be encouraged in this state." Or by
article 22 of the constitution of Delaware, (1776,) which required all officers,
besides an oath of allegiance, to make and subscribe the following declaration: "I,
A.B., do profess [143 U.S. 457, 470] faith in God the Father, and in Jesus Christ
His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do
acknowledge the Holy Scriptures of the Old and New Testament to be given by
divine inspiration."
Even the constitution of the United States, which is supposed to have little touch
upon the private life of the individual, contains in the first amendment a
declaration common to the constitutions of all the states, as follows: "Congress
shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof," etc., - and also provides in article 1, § 7, (a provision common
to many constitutions,) that the executive shall have 10 days (Sundays excepted)
within which to determine whether he will approve or veto a bill.
There is no dissonance in these declarations. There is a universal language
pervading them all, having one meaning. They affirm and reaffirm that this is a
religious nation. These are not individual sayings, declarations of private persons.
They are organic utterances. They speak the voice of the entire people. While
because of a general recognition of this truth the question has seldom been
presented to the courts, yet we find that in Updegraph v. Comm., 11 Serg. & R.
394, 400, it was decided that, "Christianity, general Christianity, is, and always
has been, a part of the Common law of Pennsylvania; * * * not Christianity with
an established church and tithes and spiritual courts, but Christianity with liberty
of conscience to all men." And in People v. Ruggles, 8 Johns. 290, 294, 295,
Chancellor KENT, the great commentator on American law, speaking as chief
justice of the supreme court of New York, said: "The people of this state, in
common with the people of this country, profess the general doctrines of
Christianity as the rule of their faith and practice; and to scandalize the author of
those doctrines in not only, in a religious point of view, extremely impious, but,
even in respect to the obligations due to society, is a gross violation of decency
and good order. * * * The free, equal, and undisturbed enjoyment of religious
opinion, whatever it may be, and free and decent discussions on any religious
[143 U.S. 457, 471] subject, is granted and secured; but to revile, with malicious
and blasphemous contempt, the religion professed by almost the whole
community is an abuse of that right. Nor are we bound by any expressions in the
constitution, as some have strangely supposed, either not to punish at all, or to
punish indiscriminately the like attacks upon the religion of Mahomet or of the
Grand Lama; and for this plain reason that the case assumes that we are a
Christian people, and the morality of the country is deeply ingrafted upon
Christianity, and not upon the doctrines or worship of those impostors." And in
the famous case of Vidal v. Girard's Ex'rs, 2 How. 127, 198, this court, while
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sustaining the will of Mr. Girard, with its provisions for the creation of a college
into which no minister should be permitted to enter, observed: "it is also said, and
truly, that the Christian religion is a part of the Common law of Pennsylvania."
If we pass beyond these matters to a view of American life, as expressed by its
laws, its business, its customs, and its society, we find everywhere a clear
recognition of the same truth. Among other matters note the following: The form
of oath universally prevailing, concluding with an appeal to the Almighty; the
custom of opening sessions of all deliberative bodies and most conventions with
prayer; the prefatory words of all wills, "In the name of God, amen;" the laws
respecting the observance of the Sabbath, with the general cessation of all secular
business, and the closing of courts, legislatures, and other similar public
assemblies on that day; the churches and church organizations which abound in
every city, town, and hamlet; the multitude of charitable organizations existing
everywhere under Christian auspices; the gigantic missionary associations, with
general support, and aiming to establish Christian missions in every quarter of the
globe. These and many other matters which might be noticed, add a volume of
unofficial declarations to the mass of organic utterances that this is a Christian
nation. In the face of all these, shall it be believed that a congress of the United
States intended to make it a misdemeanor for a church of this country to contract
for the services of a Christian minister residing in another nation?
[143 U.S. 457, 472] Suppose, in the congress that passed this act, some member
had offered a bill which in terms declared that, if any Roman Catholic church in
this country should contract with Cardinal Manning to come to this country, and
enter into its service as pastor and priest, or any Episcopal church should enter
into a like contract with Canon Farrar, or any Baptist church should make similar
arrangements with Rev. Mr. Spurgeon, or any Jewish synagogue with some
eminent rabbi, such contract should be adjudged unlawful and void, and the
church making it be subject to prosecution and punishment. Can it be believed
that it would have received a minute of approving thought or a single vote? Yet it
is contended that such was, in effect, the meaning of this statute. The construction
invoked cannot be accepted as correct. It is a case where there was presented a
definite evil, in view of which the legislature used general terms with the purpose
of reaching all phases of that evil; and thereafter, unexpectedly, it is developed
that the general language thus employed is broad enough to reach cases and acts
which the whole history and life of the country affirm could not have been
intentionally legislated against. It is the duty of the courts, under those
circumstances, to say that, however {517} broad the language of the statute may
be, the act, although within the letter, is not with the intention of the legislature,
and therefore cannot be within the statute.
The judgment will be reversed, and the case remanded for further proceedings in
accordance with the opinion.
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United Steelworkers of America, AFL-CIO-CLC v. Weber,
44 U.S. 193, 61 L.Ed. 2d 480, 99 S.Ct. 2721 (1979)
Mr. Justice Brennan delivered the opinion of the Court.
Challenged here is the legality of an affirmative action plan--collectively
bargained by an employer and a union--that reserves for black employees 50% of
the openings in an in-plant craft training program until the percentage of black
craft workers in the plant is commensurate with the percentage of, blacks in the
labor force. The question for decision is whether Congress, in Title VII of the
Civil Rights Act of 1964 as amended. 42 U.S.C. § 2000e, left employers and
unions in the private sector free to take such race- conscious steps to eliminate
manifest racial imbalances in traditionally segregated job categories. We hold that
Title VII does not prohibit such race-conscious affirmative action plans.
I
In 1974 petitioner United Steelworkers of America (USWA) and petitioner
Kaiser Aluminum & Chemical Corporation (Kaiser) entered into a master
collective-bargaining agreement at 14 Kaiser plants. The agreement contained,
inter alia, an affirmative action plan designed to eliminate conspicuous racial
imbalances in Kaiser's then almost exclusively white craft work forces. Black
craft hiring goals were set for each Kaiser plant equal to the percentage of blacks
in the respective local labor forces. To enable plants to meet these goals, on-thejob training programs were established to teach unskilled production workers-black and white--the skills necessary to become craft workers. The plan reserved
for black employees 50% of the openings in these newly created in-plant training
programs.
This case arose from the operation of the plan at Kaiser's plant in Gramercy, La.
Until 1974 Kaiser hired as craft workers for that plant only persons who had had
prior experience. Because blacks had long been excluded from craft unions, few
were able to present such credentials. As a consequence, prior to 1974 only
1.83% (five out of 273) of the skilled craft workers at the Gramercy plant were
black, even though the work force in the Gramercy area was approximately 39%
black.
Pursuant to the national agreement Kaiser altered its craft hiring practice in the
Gramercy plant. Rather than hiring already trained outsiders, Kaiser established a
training program to train its production workers to fill craft openings. Selection of
craft trainees was made on the basis of seniority, with the proviso that at least
50% of the new trainees were to be black until the percentage of black skilled
craft workers in the Gramercy plant approximated the percentage of blacks in the
local labor force.
During 1974, the first year of the operation of the Kaiser-USWA affirmative
action plan, 13 craft trainees were selected from Gramercy's production work
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force. Of these, 7 were black and 6 white. The most junior black selected into the
program had less seniority than several white production workers whose bids for
admission were rejected. Thereafter one of those white production workers,
respondent Brian Weber, instituted this class action in the United States District
Court for the Eastern District of Louisiana.
The complaint alleged that the filling of craft trainee positions at the Gramercy
plant pursuant to the affirmative action program had resulted in junior black
employees receiving training in preference to more senior white employees, thus
discriminating against respondent and other similarly situated white employees in
violation of §§ 703(a) and (d) of Title VII. The District Court held that the plan
violated Title VII, entered a judgment in favor of the plaintiff class, and granted a
permanent injunction prohibiting Kaiser and the USWA "from denying plaintiffs,
Brian F. Weber and all other members of the class, access to on-the-job training
programs on the basis of race." A divided panel of the Court of Appeals for the
Fifth Circuit affirmed, holding that all employment preferences incidental to bona
fide affirmative action plans, violated Title VII's prohibition against racial
discrimination in employment.... We granted certiorari.... We reverse.
We emphasize at the outset the narrow- * ness of our inquiry. Since the KaiserUSWA plan does not involve state action, this case does not present an alleged
violation of the Equal Protection Clause of the Constitution. Further, since the
Kaiser-USWA plan was adopted voluntarily, we are not concerned with what
Title VII requires or with " what a court might order to remedy a past proven
violation of the Act. The only question before us is the narrow statutory issue of
whether Title VII forbids private employers and unions from voluntarily agreeing
upon bona fide affirmative action plans that accord racial preferences in the
manner and for the purpose provided in the Kaiser-USWA plan....
Respondent argues that Congress in- tended in Title VII to prohibit all raceconscious affirmative action plans. Respondent's argument rests upon a literal
interpretation of §§ 703(a) and (d) of the Act. Those sections make it unlawful to
"discriminate... because of... race" in hiring and in the selection of apprentices for
training programs. Since, the argument runs, McDonald v. Sante Fe Trail Trans.
Co.... settled that Title VII forbids discrimination against whites as well as blacks,
and since the Kaiser-USWA affirmative action plan operates to discriminate
against white employees solely because they are white, it follows that the KaiserUSWA plan violates Title VII.
Respondent's argument is not without force. But it overlooks the significance of
the fact that the Kaiser-USWA plan is an affirmative action plan voluntarily
adopted by private parties to eliminate traditional patterns of racial segregation.
In this context respondent's reliance upon a literal construction of §§ 703(a) and
(d) and upon McDonald is misplaced....
The prohibition against racial discrimination in §§ 703(a) and (d) of Title VII
must therefore be read against the background of the legislative history of Title
VII and the historical context from which the Act arose.... Examination of those
sources makes clear that an interpretation of the sections that forbade all race-
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conscious affirmative action would "bring about an end completely at variance
with the purpose of the statute" and must be rejected....
Congress' primary concern in enacting the prohibition against racial
discrimination in Title VII of the Civil Rights Act of 1964 was with "the plight of
the Negro in our economy."...
Accordingly, it was clear to Congress that "the crux of the problem [was] to open
employment opportunities for Negroes in occupations which have been
traditionally closed to them."... (remarks of Sen. Humphrey), and it was to this
problem that Title VII's prohibition against racial discrimination in employment
was primarily addressed.
It plainly appears from the House Report accompanying the Civil Rights Act that
Congress did not intend wholly to prohibit private and voluntary affirmative
action efforts as one method of solving this problem. The Report provides:
No bill can or should lay claim to eliminating all of the causes and consequences
of racial and other types of discrimination against minorities. There is reason to
believe, however, that national leadership provided by the enactment of Federal
legislation dealing with the most troublesome problems will create an atmosphere
conducive to voluntary or local resolution of other forms of discrimination....
Given this legislative history, we cannot agree with respondent that Congress
intended to prohibit the private sector from taking effective steps to accomplish
the goal that Congress designed Title VII to achieve. The very statutory words
intended as a spur or catalyst to cause "employers and unions to self- examine
and to self-evaluate their employment practices and to endeavor to eliminate, " so
far as possible, the last vestiges of an unfortunate and ignominious page in this
country's history,"... cannot be interpreted as an absolute prohibition against all
private, voluntary, race-conscious affirmative action efforts to hasten the
elimination of such vestiges. It would be ironic indeed if a law triggered by a
Nation's concern over centuries of racial injustice and intended to improve the lot
of those who had "been excluded from the American dream for so long,"...
constituted the first legislative prohibition of all voluntary, private, raceconscious efforts to abolish traditional patterns of racial segregation and
hierarchy.
Our conclusion is further reinforced by examination of the language and
legislative history of § 703(j) of Title VII. Opponents of Title VII raised two
related arguments against the bill. First, they argued that the Act would be
interpreted to require employers with racially imbalanced work forces to grant
preferential treatment to racial minorities in order to integrate. Second, they
argued that employers with racially imbalanced work forces would grant
preferential treatment to racial minorities, even if not required to do so by the
Act.... Had Congress meant to prohibit all race-conscious affirmative action, as
respondent urges, it easily could have answered both objections by providing that
Title VII would not require or permit racially preferential integration efforts. But
Congress did not choose such a course. Rather Congress added § 703(j) which
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addresses only the first objection. The section provides that nothing contained in
Title VII "shall be interpreted to require any employer... to grant preferential
treatment... to any group because of the race... of such... group on account of a de
facto racial imbalance in the employer's work force. The section does not state
that "nothing in Title" VII shall be interpreted to permit voluntary affirmative
efforts to correct racial imbalances. The natural inference is that Congress chose
not to forbid all voluntary race-conscious affirmative action...
We therefore hold that Title VII's prohibition in §§ 703(a) and (d) against racial
discrimination does not condemn all private, voluntary, race-conscious
affirmative action plans.
III
We need not today define in detail the line of demarcation between permissible
and impermissible affirmative action plans. It suffices to hold that the challenged
Kaiser-USWA affirmative action plan falls on the permissible side of the line.
The purposes of the plan mirror those of the statute. Both were designed to break
down old patterns of racial segregation and hierarchy. Both were structured to
"open employment opportunities for Negroes in occupations which have been
traditionally Closed to them." 110 Cong. Rec. 6548 (remarks of Sen. Humphrey).
At the same time the plan does not unnecessarily trammel the interests of the
white employees. The plan does not require the discharge of white workers and
their replacement with new black hirees.... Nor does the plan create an absolute
bar to the advancement of white employees; half of those trained in the program
will be white. Moreover, the plan is a temporary measure; it is not intended to
maintain racial balance, but simply to eliminate a manifest racial imbalance.
Preferential selection of craft trainees at the Gramercy plant will end as soon as
the percentage of black skilled craft workers in the Gramercy plant approximates
the percentage of blacks in the local labor force.
We conclude, therefore, that the adoption of the Kaiser-USWA plan for
Gramercy plant falls within the area of discretion left by Title VII to the private
sector voluntarily to adopt affirmative action plans designed to eliminate
conspicuous racial imbalance in traditionally segregated job categories.
Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is
Reversed.
MR. JUSTICE REHNQUIST, with " whom THE CHIEF JUSTICE joins,
dissenting.
... Today's decision represents a dramatic and... unremarked switch in the Court's
interpretation of Title VII.
We have never wavered in our understanding that Title VII "prohibits all racial
discrimination in employment, without exception for any particular employees....
[I]n our most recent discussion of the issue, we uttered words seemingly
dispositive of this case: "It is clear beyond cavil that the obligation imposed by
Title VII is to provide an equal opportunity for each applicant regardless of race,
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without regard to whether members of the applicant's race are already
proportionately represented in the work force." Furnco Construction Corp. v.
Waters, 438 U.S. 567, 579 (1978) (emphasis in original).
Today, however, the Court behaves... as if it had been handed a note indicating
that Title VII would lead to a result unacceptable to the Court if interpreted here
as it was in our prior decisions. Accordingly, without even a break in syntax, the
Court rejects "a literal construction of § 703(a)" in favor of newly discovered
"legislative history," which leads it to a conclusion directly contrary to that
compelled by the "uncontradicted legislative history."... Now we are told that the
legislative history of Title VII shows that employers are free to discriminate on
the basis of race: an employer may, in the Court's words, "trammel the interests
of white employees" in favor of black employees in order to eliminate "racial
imbalance."...
As if this were not enough to make a reasonable observer question this Court's
adherence to the oft-stated principle that our duty is to construe rather than
rewrite legislation.... the Court also seizes upon § 703(j) of Title VII as an
independent, or at least " partially independent, basis for its holding. Totally
ignoring the wording of that section, which is obviously addressed to those
charged with the responsibility of interpreting the law rather than those who are
subject to its proscriptions, and totally ignoring the months of legislative debates
preceding the section's introduction and passage, which demonstrate clearly that
it was enacted to prevent precisely " what occurred in this case, the Court infers
from § 703(j) that "Congress chose not to for- bid all voluntary race-conscious
affirmative action."...
Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and
Hughes, but of escape artists such as Houdini, the Court eludes clear statutory
language, "un-contradicted" legislative history and uniform precedent in
concluding that employers are, after all, permitted to consider race in making
employment decisions. It may be that one or more of the principal sponsors of
Title VII would have preferred to see a provision allowing preferential treatment
of minorities written into the bill. Such a provision, however, would have to have
been expressly or impliedly excepted from Title VII's explicit prohibition on all
racial discrimination in employment. There is no such exception in the Act. And
a reading of the legislative debates concerning Title VII, in which proponents and
opponents alike uniformly denounced discrimination in favor of, as well as
discrimination against, Negroes, demonstrates clearly that any legislator
harboring an unspoken desire for such a provision could not possibly have
succeeded in enacting it into law....
II
Were Congress to act today specifically to prohibit the type of racial
discrimination suffered by Weber, it would be hard pressed to draft language
better tailored to the task than that found in § 703(d) of Title VII:
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It shall be an unlawful employment practice for any employer, labor organization,
or joint labor-management committee controlling apprenticeship or other training
or retraining, including on-the-job training programs to discriminate against any
individual because of his race, color, religion, sex, or national origin in admission
to, or employment in, any program established to provide apprenticeship or other
training. 42 U.S.C. § 2000e 2(d).
Equally suited to the task would be § 703(a) (2), which makes it unlawful for an
employer to classify his employees "in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual's race, color, religion, sex,
or national origin." 42 U.S.C. § 2000e 2(a)(2).
Entirely consistent with these two ex- press prohibitions is the language of §
703(j) of Title VII, which provides that the Act is not to be interpreted "to require
any employer... to grant preferential treatment to any individual or to any group
because of the race... of such individual or group to correct a racial imbalance in
the employer's work force. 24 U.S.C. § 2000e-2(j). Seizing on the word "require",
the Court infers that Congress must have intended to "permit" this type of racial
discrimination. Not only is this reading of § 703(j) outlandish in the light of the
flat prohibitions of §§ 703(a) and (d), but.., it is totally belied by the Act's
legislative history....
IV
Reading the language of Title VII, as the Court purports to do, "against the background of [its] legislative history... and the historical context from which the Act
arose,"... one is led inescapably to the conclusion that Congress fully understood
what it , was saying and meant precisely what it said. Opponents of the civil
rights bill did not argue that employers would be permitted under Title VII
voluntarily to grant preferential treatment to minorities to correct racial
imbalance. The plain language of the statute too clearly prohibited such racial
discrimination to admit of any doubt. They argued, tirelessly, that Title VII would
be interpreted by federal agencies and their agents to require unwilling employers
to racially balance their work forces by granting preferential treatment to
minorities. Supporters of H.R. 7152 responded, equally tirelessly, that the Act
would not be so interpreted because not only does it not require preferential
treatment of minorities, it does not permit preferential treatment of any race for
any reason. It cannot be doubted that the proponents of Title VII understood the
meaning of their words, for "[s]eldom has similar legislation been debated with
greater consciousness for the need for 'legislative history' or with greater care in
the making thereof, to guide the courts in interpreting and applying the law."...
To put an end to the dispute, supporters of the civil rights bill drafted and
introduced § 703(j). Specifically addressed to the opposition's charge, § 703(j)
simply enjoins federal agencies and courts from interpreting Title VII to require
an employer to prefer certain racial groups to correct imbalances in his work
force. The section says nothing about voluntary preferential treatment of
minorities because such racial discrimination is plainly proscribed by §§ 703(a)
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and (d). Indeed, had Congress intended to except voluntary, race-conscious
preferential treatment from the blanket prohibition on racial discrimination in §§
703(a) and (d), it surely could have drafted language better suited to the task than
§ 703(j). It knew how....
V
Our task in this case, like any other case involving the construction of a statute, is
to give effect to the intent of Congress. To divine that intent, we traditionally look
first to the words of the statute and, if they are unclear, then to the statute's
legislative history. Finding the desired result hopelessly foreclosed by these
conventional sources, the Court turns to a third source--the "spirit" of the Act. But
close examination of what the Court proffers as the spirit of the Act reveals it as
the spirit animating the present majority, not the Eighty-eighth Congress. For if
the spirit of the Act eludes the cold words of the statute itself, it rings out with
unmistakable clarity in the words of the elected representatives who made the Act
law. It is equality....
There is perhaps no device more destructive to the notion of equality than the
numerus clausus--the quota. Whether described as "benign discrimination" or
"affirmative action," the racial quota is nonetheless a creator of castes, a twoedged sword that must demean one in order to prefer another. In passing Title VII
Congress outlawed all racial discrimination, recognizing that no discrimination
based on race is benign, that no action disadvantaging a per- son because of his
color is affirmative. With today's holding, the Court introduces into Title VII a
tolerance for the very evil that the law was intended to eradicate, without offering
even a clue as to what the limits on that tolerance may be. We are told simply that
Kaiser's racially discriminatory admission quota "falls on the permissible side of
the line." By going not merely beyond, but directly against Title VII's language
and legislative history, the Court has sown the wind. Later courts will face the
impossible task of' reaping the whirlwind.
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Part IV – Courts and Lawyers
Thank to Hollywood, the American lawyers are “The Lawyers” in the
world. Famous for their Ciceronian’s de oratore – docere, delectare,
movere47 -, their style is unseparable of the American Jury system and the
proceeding rules that are mostly based on oral argumentation. Heroes in
movies, they, however, have to assume a bad reputation, as seen in
Ambrose Bierce’s definition: “A lawyer is one skilled in circumvention of
the law”. However, this is to forget that they are the cornerstones of the
legal and judicial system of the United States, especially after September
the 11th, where the government aims more and more to privilege
prevention and repression over freedom and the principle of innonce and
fair trial.
47
To proof, to please, to touch.
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Lecture # 16– Courts
Section 1 – State Courts
In regard to states courts, we have at the lowest level the justices of peace,
also called in some states magistrates like in New-York. Some states have
probate courts for settling decedents’ estates. Usually the Justice of peace
is an elected official who serves a two to six year term and is not
necessary a lawyer except in some urban areas like in the State of NewYork. They are performing civil marriages and attesting legal documents;
presiding over courts of first instance in both minor civil and criminal
matters, and they may even hold preliminary hearings in cases involving
more serious crimes. Beneath of them, there are the municipal courts, also
called traffic courts, city courts, small claim courts or police courts. The
judges are or elected or appointed and do deal with civil cases (generally
from $500 to $1000) and certain misdemeanors. The trial courts,
designated as Court of common pleas, county court or superior court, have
general civil and criminal jurisdiction. Their geographical jurisdiction is
normally the county.
Courts of Appeals, also called appellate division or state appellate court,
receive appeals from decisions of the county and municipal courts.
At the top of the state judicial pyramid stands a supreme court. It has the
final word on all state constitutional questions and receives and
adjudicates appeals on major questions emanating from the other courts,
but mainly from the appellate court. However, sometimes the local
system, like Oklahoma, has a supreme court for civil and administrative
cases, whereas courts of criminal appeals constitute the last instance in
criminal proceedings.
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Section 2 - Federal Courts48
The trial courts of the federal system are constituted by 90 District courts,
organized in regional circuits and composed of some 694 judges
appointed by the President and confirmed by the Senate, in charge during
good behavior, thus serving for life except if there is a good cause for
revocation. The courts have jurisdiction for federal questions cases and
diversity cases where parties of at least two states or a party of a foreign
state are involved and the litigated amount is superior of 75.000$, and that
there is no exclusive jurisdiction of a state court like it is e.g. for divorce
cases.
Beneath the district courts, we have specialized courts. The US Court of
International Trade is in charge of disputes involving international trade,
custom duties and imported goods. The US Claims Court, which is the
keeper of the nation’s conscience, settles litigations for damages against
the Federal Government. The US Tax Court acts for the Internal Revenue
Service against taxpayers who evade the payment of their income, land or
gift taxes. There also exist many agencies having specialized jurisdiction
like the Patent and Trademark Commission.
12 US Courts of Appeals or Circuits courts, with some 179 judges,
receive appeals from the district court and agencies. The 13th Circuit
Court is in charge of the Federal Circuit and receives appeals from the
specialized courts.
The highest court in the United States is the federal Supreme Court. It is
in fact the only federal court mentioned and provided for by the
Constitution; all other courts were created by statutes. It stands under the
authority of a Chief Justice, assisted by eight Associate Justices appointed
by the President with the advice and consent of the Senate. It has original
jurisdiction in cases involving ambassadors, public ministers, counsels
and national states; appellate jurisdiction over cases decided by federal
courts and cases decided over by state courts involving federal issues. The
sentences of the court are rendered as opinions, followed by concurring
and/or dissenting opinions.
48
Understanding the Federal Courts, via The Federal Judiciary Hompage,
http://www.uscourts.gov/UFC99.pdf.
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As a direct consequence of the adoption of the XIVth amendment, each
State law was systematically attacked before the Supreme Court by
constitutional claims on basis of the due process of law clause. Being
totally over swam, the Supreme Court established the right to examine
only cases that seem important to it. If so, the Court grants a writ of
certiorari, allowing the parties to present the case before the highest
magistrates of the land.
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Cases and Materials
President Issues Military Order
Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism
For Immediate Release
Office of the Press Secretary
November 13, 2001
By the authority vested in me as President and as Commander in Chief of the
Armed Forces of the United States by the Constitution and the laws of the United
States of America, including the Authorization for Use of Military Force Joint
Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title
10, United States Code, it is hereby ordered as follows:
Section 1. Findings.
(a) International terrorists, including members of al Qaida, have carried out
attacks on United States diplomatic and military personnel and facilities abroad
and on citizens and property within the United States on a scale that has created a
state of armed conflict that requires the use of the United States Armed Forces.
(b) In light of grave acts of terrorism and threats of terrorism, including the
terrorist attacks on September 11, 2001, on the headquarters of the United States
Department of Defense in the national capital region, on the World Trade Center
in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a
national emergency on September 14, 2001 (Proc. 7463, Declaration of National
Emergency by Reason of Certain Terrorist Attacks).
(c) Individuals acting alone and in concert involved in international terrorism
possess both the capability and the intention to undertake further terrorist attacks
against the United States that, if not detected and prevented, will cause mass
deaths, mass injuries, and massive destruction of property, and may place at risk
the continuity of the operations of the United States Government.
(d) The ability of the United States to protect the United States and its citizens,
and to help its allies and other cooperating nations protect their nations and their
citizens, from such further terrorist attacks depends in significant part upon using
the United States Armed Forces to identify terrorists and those who support them,
to disrupt their activities, and to eliminate their ability to conduct or support such
attacks.
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(e) To protect the United States and its citizens, and for the effective conduct of
military operations and prevention of terrorist attacks, it is necessary for
individuals subject to this order pursuant to section 2 hereof to be detained, and,
when tried, to be tried for violations of the laws of war and other applicable laws
by military tribunals.
(f) Given the danger to the safety of the United States and the nature of
international terrorism, and to the extent provided by and under this order, I find
consistent with section 836 of title 10, United States Code, that it is not
practicable to apply in military commissions under this order the principles of law
and the rules of evidence generally recognized in the trial of criminal cases in the
United States district courts.
(g) Having fully considered the magnitude of the potential deaths, injuries, and
property destruction that would result from potential acts of terrorism against the
United States, and the probability that such acts will occur, I have determined that
an extraordinary emergency exists for national defense purposes, that this
emergency constitutes an urgent and compelling govern-ment interest, and that
issuance of this order is necessary to meet the emergency.
Sec. 2. Definition and Policy.
(a) The term "individual subject to this order" shall mean any individual who is
not a United States citizen with respect to whom I determine from time to time in
writing that:
(1) there is reason to believe that such individual, at the relevant
times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international
terrorism, or acts in preparation therefor, that have caused, threaten to cause, or
have as their aim to cause, injury to or adverse effects on the United States, its
citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs
(i) or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States that such individual be subject to this
order.
(b) It is the policy of the United States that the Secretary of Defense shall take all
necessary measures to ensure that any individual subject to this order is detained
in accordance with section 3, and, if the individual is to be tried, that such
individual is tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual subject to this
order who is not already under the control of the Secretary of Defense but who is
under the control of any other officer or agent of the United States or any State
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shall, upon delivery of a copy of such written determination to such officer or
agent, forthwith be placed under the control of the Secretary of Defense.
Sec. 3. Detention Authority of the Secretary of Defense.
Any individual subject to this order shall be -(a) detained at an appropriate location designated by the Secretary of Defense
outside or within the United States;
(b) treated humanely, without any adverse distinction based on race, color,
religion, gender, birth, wealth, or any similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and medical
treatment;
(d) allowed the free exercise of religion consistent with the requirements of such
detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense
may prescribe.
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals
Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military
commission for any and all offenses triable by military commission that such
individual is alleged to have committed, and may be punished in accordance with
the penalties provided under applicable law, including life imprisonment or death.
(b) As a military function and in light of the findings in section 1, including
subsection (f) thereof, the Secretary of Defense shall issue such orders and
regulations, including orders for the appointment of one or more military
commissions, as may be necessary to carry out subsection (a) of this section.
(c) Orders and regulations issued under subsection (b) of this section shall
include, but not be limited to, rules for the conduct of the proceedings of military
commissions, including pretrial, trial, and post-trial procedures, modes of proof,
issuance of process, and qualifications of attorneys, which shall at a minimum
provide for -(1) military commissions to sit at any time and any place, consistent with such
guidance regarding time and place as the Secretary of Defense may provide;
(2) a full and fair trial, with the military commission sitting as the triers of both
fact and law;
(3) admission of such evidence as would, in the opinion of the presiding officer
of the military commission (or instead, if any other member of the commission so
requests at the time the presiding officer renders that opinion, the opinion of the
commission rendered at that time by a majority of the commission), have
probative value to a reasonable person;
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(4) in a manner consistent with the protection of information classified or
classifiable under Executive Order 12958 of April 17, 1995, as amended, or any
successor Executive Order, protected by statute or rule from unauthorized
disclosure, or otherwise protected by law, (A) the handling of, admission into
evidence of, and access to materials and information, and (B) the conduct, closure
of, and access to proceedings;
(5) conduct of the prosecution by one or more attorneys designated by the
Secretary of Defense and conduct of the defense by attorneys for the individual
subject to this order;
(6) conviction only upon the concurrence of two-thirds of the members of the
commission present at the time of the vote, a majority being present;
(7) sentencing only upon the concurrence of two-thirds of the members of the
commission present at the time of the vote, a majority being present; and
(8) submission of the record of the trial, including any conviction or sentence, for
review and final decision by me or by the Secretary of Defense if so designated
by me for that purpose.
Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense.
Departments, agencies, entities, and officers of the United States shall, to the
maximum extent permitted by law, provide to the Secretary of Defense such
assistance as he may request to implement this order.
Sec. 6. Additional Authorities of the Secretary of Defense.
(a) As a military function and in light of the findings in section 1, the Secretary
of Defense shall issue such orders and regulations as may be necessary to carry
out any of the provisions of this order.
(b) The Secretary of Defense may perform any of his functions or duties, and
may exercise any of the powers provided to him under this order (other than
under section 4(c)(8) hereof) in accordance with section 113(d) of title 10, United
States Code.
Sec. 7. Relationship to Other Law and Forums.
(a) Nothing in this order shall be construed to -(1) authorize the disclosure of state secrets to any person not otherwise
authorized to have access to them;
(2) limit the authority of the President as Commander in Chief of the Armed
Forces or the power of the President to grant reprieves and pardons; or
(3) limit the lawful authority of the Secretary of Defense, any military
commander, or any other officer or agent of the United States or of any State to
detain or try any person who is not an individual subject to this order.
(b) With respect to any individual subject to this order --
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(1) military tribunals shall have exclusive jurisdiction with respect to offenses by
the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any
proceeding, directly or indirectly, or to have any such remedy or proceeding
sought on the individual's behalf, in (i) any court of the United States, or any
State thereof, (ii) any court of any foreign nation, or (iii) any international
tribunal.
(c) This order is not intended to and does not create any right, benefit, or
privilege, substantive or procedural, enforceable at law or equity by any party,
against the United States, its departments, agencies, or other entities, its officers
or employees, or any other person.
(d) For purposes of this order, the term "State" includes any State, district,
territory, or possession of the United States.
(e) I reserve the authority to direct the Secretary of Defense, at any time
hereafter, to transfer to a governmental authority control of any individual subject
to this order. Nothing in this order shall be construed to limit the authority of any
such governmental authority to prosecute any individual for whom control is
transferred.
Sec. 8. Publication.
This order shall be published in the Federal Register.
GEORGE W. BUSH
THE WHITE HOUSE,
November 13, 2001.
Remarks of Chief Justice William H. Rehnquist
100th Anniversiry Celebration Of the Norfolk and
Portsmouth Bar Association
Norfolk, Virginia
May 3, 200049
Thank you, Judge Doumar, for your kind introduction. I am very pleased to be
here today to help celebrate the 100th anniversary of the founding of the Norfolk
and Portsmouth Bar Association.
49
http://www.supremecourtus.gov/publicinfo/speeches/sp_05-03-00.html.
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I am going to speak this afternoon about civil liberty in time of war, focusing first
on the Civil War and then on World War II. I have chosen this subject in part
because of the importance of the Civil War in this historic area.
Even those of you who did not major in history probably know that Abraham
Lincoln was elected President in November of 1860, and was inaugurated as
President on March 4, 1861. Between the time of his election and his
inauguration, the seven states of the deep south -- South Carolina, Georgia,
Florida, Alabama, Mississippi, Louisiana, and Texas -- had seceded from the
Union and elected Jefferson Davis as their President. For the first six weeks of
Lincoln's administration, the cabinet debated what to do about the Union garrison
at Fort Sumter, on an island in the harbor of Charleston, South Carolina. In midApril, the Confederate shore batteries opened up on the fort, and the garrison
surrendered the next day. Lincoln called for 75,000 volunteers to put down the
rebellion, and the four states of the upper south -- Virginia, North Carolina,
Tennessee, and Arkansas -- seceded and joined the original seven states of the
Confederacy. The Civil War had begun.
As most of you already know, some of the more well-known Civil War events
occurred in this area. Indeed, the Norfolk Navy Shipyard played an interesting
role during the Civil War. The U. S. government had established the Norfolk
Navy Shipyard in 1801. Its predecessor on the same site was a private shipyard
built in 1767 by a wealthy Scottish merchant named Andrew Sprowle.
On April 20, 1861, Federal troops evacuated the Norfolk Navy Yard, and the
Confederacy fell heir to the enormous amount of guns, and equipment that had
been stored there. Before they evacuated the Navy Yard, however, Federal troops
had deliberately sunk the USS "Merrimack" in hopes of preventing the
Confederate troops from making use of it. The "Merrimack" had been a brand
new steam frigate with the capacity to carry 40 guns and worth over one million
two hundred thousand dollars (in 1861 dollars) fully equipped. Under the control
of the Confederacy, the Norfolk Navy Yard salvaged and rebuilt the Confederate
ironclad "Virginia" from the hull of the scuttled USS "Merrimack".
Accounts from the time state that the refurbished "Virginia", also still referred to
by many as the "Merrimack", bore some resemblance to a huge terrapin, with a
large round chimney about the middle of its back. The ship had a maximum
speed of around five knots or five miles per hour, and it was not suitable to sail in
either high winds or heavy seas. It also took over 30 minutes to turn the vessel.
Thus the sole purpose of the ironclad "Virginia" was to guard the Norfolk harbor.
The reconstruction of the "Virginia" by Confederate workers was completed on
March 5, 1862.
The Confederacy generally intended to use the ironclad "Virginia" to guard the
water route to Richmond from the coast via the James River. The vessel's first
voyage away from the Norfolk Navy Yard occurred on March 8, 1862. On that
day, the "Virginia" sank the federal ship "Cumberland" and burned the Union
ship "Congress" off Hampton Roads (which today is considered part of the
Norfolk/Portsmouth/Hampton Roads metropolitan area). On March 9, 1862, the
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"Virginia" sailed out to complete the destruction of the federal ship "Minnesota",
which had run aground after the previous day's encounter with the "Virginia". On
this voyage, the "Virginia" met the USS "Monitor", also an experimental ironclad
with a revolving turret amidship. The ensuing five-hour battle was the first naval
engagement in history between ironclad vessels. Although the engagement
resulted in a draw, the "Virginia" was nonetheless driven back to Norfolk for
repairs. The James River remained closed, however, keeping the federal fleet in
Hampton Roads and away from Richmond. In early May of 1862, Confederate
soldiers burned the "Virginia" in order to keep her from falling back into the
hands of Federal troops. The City of Norfolk and the Navy Yard were then
recaptured by Federal troops on May 10 of 1862.
Let us now shift our focus to a city located on the northern border of the
Commonwealth of Virginia. When the Civil War broke out, Washington, D.C.
went from being an interior capital to a capital on the very frontier of the Union,
exposed to possible raids and even investment and capture by the Confederate
forces. President Lincoln, fully aware of this danger, was most anxious that the
75,000 volunteers for whom he had called would arrive in Washington and
defend the city against a possible Confederate attack. Many would come from the
northeast -- Boston, New York, and Philadelphia. But all of the rail connections
from the northeast into Washington ran through the city of Baltimore, 40 miles to
the northeast. Herein lay a problem; there were numerous Confederate
sympathizers in Baltimore and the city itself, at that time, had a reputation for
unruliness -- it was known as "Mob City." To complicate matters further, it was
necessary for passengers enroute from the northeast to Washington to change
stations in Baltimore.
Shortly after troops from the northeast began arriving in Baltimore on their way
to Washington, a riot broke out while soldiers were in transit from one station to
another. Some of the troops were riding in railroad cars drawn by horses through
the downtown streets of the city, while others were marching in military
formation through those same streets. A hostile crowd pelted the troops with
stones. The troops in turn fired shots into the crowd. Several soldiers and several
bystanders were killed.
That night, the chief of police of Baltimore, who was an avowed Confederate
sympathizer, and the Mayor of Baltimore, who was a less open one, spearheaded
a group of Confederate sympathizers who took matters into their own hands.
They blew up the railroad bridges leading into Baltimore from the north. As a
result troops bound for Washington to be sent on a circuitous journey by ship
from a point on the Chesapeake Bay above Baltimore to Annapolis, from which
they traveled to Washington by land.
In response to the situation in Baltimore, Lincoln, at the behest of his Secretary of
State, William H. Seward, took the first step to curtail civil liberty -- he
authorized General Winfield Scott, commander-in-chief of the Army, to suspend
the writ of habeas corpus at any point he deemed necessary along the rail line
from Philadelphia to Washington. Scott took full advantage of this authority, and
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several weeks later, federal troops arrested a man named Merryman, whom
authorities suspected of being a major actor in the dynamiting of the railroad
bridges. He was he confined in Fort McHenry, and immediately sued out a writ of
habeas corpus.
The writ of habeas corpus is something that comes to us from English Common
law, and was the means by which one who was arrested or confined by
governmental authority could ask a court to require the person holding him in
custody to show cause why he was being held. The court would then decide
whether there was sufficient reason to hold the person, and if there was not would
order him set free. It has been rightly regarded as a safeguard against executive
tyranny, and an essential safeguard to individual liberty. The United States
Constitution provides that the writ of habeas corpus shall not be suspended,
except when in time of war or rebellion the public safety shall require it.
The day after Merryman sought the writ, Chief Justice Roger Taney, who was
sitting as a circuit judge in Baltimore, ordered the government to show cause why
Merryman should not be released. A representative of the commandant of Fort
McHenry appeared in court for the government to advise Taney that the writ of
habeas corpus had been suspended, and asked for time to consult with the
government in Washington. Taney refused, and issued an arrest warrant for the
commandant. The next day, the marshal reported that in his effort to serve the
writ he had been denied admission to the fort. Taney then issued an opinion in the
case declaring that the President alone did not have the authority to suspend the
writ of habeas corpus -- only Congress could do that -- and holding that
Merryman's confinement was illegal. The Chief Justice, knowing that he could
not enforce his order, sent a copy of it to Lincoln.
Lincoln ignored the order, but in his address to the special session of Congress
which he had called to meet on July 4, 1861, he adverted to it in these words:
"Must [the laws] be allowed to finally fail of execution even had it been perfectly
clear that by the use of the means necessary to their execution some single law,
made in such extreme tenderness of the citizen's liberty that practically it relieves
more of the guilty than of the innocent, should to a very limited extent be
violated? To state the question more directly, are all the laws but one to go
unexecuted, and the government itself go to pieces less that one be violated?"
Lincoln, with his usual incisiveness, put his finger on the debate that inevitably
surrounds issues of civil liberties in wartime. If the country itself is in mortal
danger, must we enforce every provision safeguarding individual liberties even
though to do so will endanger the very government which is created by the
Constitution? The question of whether only Congress may suspend it has never
been authoritatively answered to this day, but the Lincoln administration
proceeded to arrest and detain persons suspected of disloyal activities, including
the mayor of Baltimore and the chief of police.
Newspaper publishers did not escape the government's watchful eye during the
Civil War either -- particularly the New York press, which had a disproportionate
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impact on the rest of the country. Newspapers in smaller cities frequently simply
reprinted stories which had run earlier in the metropolitan press. In August 1861,
a grand jury sitting in New York was outraged by an article in the New York
Journal of Commerce -- a paper which opposed the war -- that listed over one
hundred Northern newspapers opposed to "the present unholy war." Without
hearing any evidence or receiving any legal instructions from the judge, the grand
jury made a "presentment" as to five anti-war New York newspapers -- a written
notice taken by a grand jury of what it believes to be an indictable offense.
On this thin reed, the administration proceeded to act. Postmaster General
Montgomery Blair directed the Postmaster in New York to exclude from the
mails the five newspapers named by the grand jury. Gerald Hallock, the part
owner and editor of the Journal of Commerce, was obliged to negotiate with the
Post Office Department to see what the paper would have to do to regain its right
to use of the mails. The Post Office Department told him that he must sell his
ownership in the newspaper. Hallock reluctantly agreed, and retired, thereby
depriving the paper of its principal editorialist opposing the war.
The New York News, owned by Benjamin Wood, brother of New York Mayor
Fernando Wood, decided to fight the ban against his paper. He sought to send its
edition south and west by private express, and hired newsboys to deliver the
paper locally. The government ordered U.S. Marshals to seize all copies of the
paper. In fact one newsboy in Connecticut was arrested for having hawked it.
Eventually, Wood, too, gave up. The other New York newspapers did not rally to
the cause of the anti-war newspapers, shouting "First Amendment," as they surely
would today. Quite the contrary, they gloated. James Gordon Bennett's Herald
was "gratified" to report the death of the News, and the Times observed that Ben
Wood should be thankful he could "walk in the streets."
Even clergy were subject to detention for perceived disloyalty. Perhaps the most
egregious example was that of the Reverend J. R. Stewart, the Episcopal rector at
St. Paul's Church in Alexandria, Virginia, who was undoubtedly a southern
sympathizer. For two Sundays in a row, he had omitted the customary Episcopal
prayer for the President of the United States in the course of the service. On the
second of these occasions, he was arrested in the pulpit of the church, and briefly
detained until cooler heads prevailed.
As the Civil War drew to a close in 1864, there was considerable disaffection and
war-weariness in what were called the states of the old northwest -- Ohio,
Indiana, and Illinois. There was evidence of a conspiracy on the part of members
of secret societies, such as the Knights of the Golden Circle and the Sons of
Liberty, to assassinate the Governor of Indiana, free Confederate prisoners held
near Chicago, and seize the federal arsenal at Rock Island, Illinois. These plans
were thwarted when, in the summer of 1864, a cache of arms and incriminating
correspondence was found in the Indianapolis home of the state commander of
the "Sons of Liberty." Edwin Stanton, Lincoln's Secretary of War, decided that
the suspects in this conspiracy should be tried, not in a regular civil court by a
jury, but by a military commission, composed of senior army officers.
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In so doing, he went a good deal further than simply suspending the writ of
habeas corpus. Trial before such a commission would raise serious questions, for
example, about denial of the right to jury trial guaranteed by the Bill of Rights.
The suspects were duly tried before such a commission in Indianapolis, and
several were sentenced to be hanged. They appealed to the Supreme Court, which
in a case called Ex Parte Milligan decided in 1866 -- more than a year after the
Civil War was over, by a vote of 5 to 4 that civilians not in the military -- and that
is who these defendants were -- could not be tried by a military commission so
long as the civil courts were open for business.
Here we have an illustration of an old maxim of Roman law -- Inter Arma Silent
Leges -- which loosely translated means that in time of war the laws are silent.
All during the Civil War the courts were unable or unwilling to ride herd on the
Lincoln administration's policies which seriously interfered with civil liberty.
Only after the end of the war was a decision handed down which upheld that
liberty.
Let us now move forward to World War II. I am one of the few in this room old
enough to remember back to the Japanese attack on Pearl Harbor on December 7,
1941. Since it began for the United States by Japan's attack on Pearl Harbor, and
Hitler's declaration of war, there was strong support for the war effort across the
political spectrum in this country. It was "the good war," as Studs Terkel calls it
in his book. Fourteen million people were in the armed services; on the home
front there were sacrifices, and slogans such as "Buy Bonds" and "A Slip of the
Lip May Sink a Ship." Even restaurants got into the act, with the slogan "Food
Will Win the War." On this sign at one restaurant, a customer scrawled "Yes, but
how can we get the enemy to eat here"?
In June of 1942, six months after Pearl Harbor, Richard Quirin and seven other
members of the German armed forces were secretly landed in the United States.
They had been trained in the use of explosives and secret writing at a sabotage
school near Berlin. Four of them were transported by German submarine to
Amagansett Beach on Long Island, New York. They landed under cover of
darkness in June 1942, carrying a supply of explosive and incendiary devices. At
the moment of the landing they wore German uniforms, but immediately
afterwards they buried their uniforms on the beach and went in civilian dress to
New York city. The remaining four who had been trained at the sabotage school
were taken by another German submarine to Ponte Vedra Beach, Florida. They
went through the same procedures as those who landed on Long Island, and
proceeded to Jacksonville in civilian dress. All were ultimately arrested by the
FBI in New York or Chicago; all had been instructed to destroy war industries in
the United States.
President Franklin Roosevelt appointed a military commission to try Quirin and
his cohorts for offenses against the laws of war and the Articles of War enacted
by Congress, and he directed that the defendants have no access to civil courts.
While they were being tried by the military commission, which sentenced all of
them to death, they petitioned the Supreme Court of the United States for review
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of the procedures under which they were being tried. The Supreme court
convened in a special term on July 29, 1942, to hear arguments in their case.
One of the principal arguments made by able counsel for the petitioners was that
the civil courts throughout the United States were open at the time, there had
been no invasion of any part of the country, and therefore under the Milligan case
there could be no resort to trial by a military commission. Counsel noted that one
of the petitioners, Herbert Haupt, had been born in the United States and was a
United States citizen. At the conclusion of the arguments in the case, and after
deliberation, the Court on July 31st announced its disposition of the case
upholding the government's position, but its full opinion did not come down until
October 1942. In that opinion the Court sharply cut back on the dicta in the
Milligan case, saying that even though the civil courts were open, and even
though it was assumed that one of the German soldiers was a United States
citizen, these defendants could nonetheless properly be tried and sentenced to
death by a court martial.
It is worth noting that this decision was made in the dark days of the summer of
1942, when the fortunes of war of the United States were just beginning to
recover from their lowest ebb. The United States Navy had suffered serious
damage to its fleet at Pearl Harbor, and Japanese troops invading the Philippines
had pushed the United States troops back onto the Bataan Peninsula, resulting in
the grisly Bataan death march. In North Africa, German forces had recaptured
Tobruck and were within striking distance of Cairo, threatening the entire Mid
East. Civil liberties were not high on anyone's agenda, including that of judges.
Hawaii was placed under martial law within days after the attack on Pearl Harbor,
and remained under that regime until it was lifted in the Autumn of 1944. Such a
regime would seem to have been quite justified in the period immediately after
the bombing of Pearl Harbor, when actual invasion of the islands by Japanese
forces was feared. But after the battle of Midway in June 1942, that possibility
was all but eliminated. Yet martial law remained in effect until the Autumn of
1944, when it was lifted by presidential proclamation.
One of the principal incidents of this martial law was that the civil courts in
Hawaii were closed the day after Pearl Harbor, and only gradually permitted to
resume some of their previous functions. They were closed not because of any
external necessity, but because the military governor of Hawaii ordered them
closed. Provost courts, composed of officers appointed by the military governor,
tried criminal cases. Lloyd Duncan, a civilian shipfitter, was charged with
assaulting two military guards at the Pearl Harbor Navy yard, where he worked.
He was tried by a provost court and sentenced to six months in jail. Harry White,
a stockbroker, was charged with having embezzled funds from a client -- surely
an offense as far removed from considerations of public order or security as one
can imagine. He was tried by a provost court and sentenced to four years in
prison. Both of the defendants challenged their convictions by habeas corpus in
the federal courts. When their cases finally reached the Supreme Court, a
majority of the Court in the case of Duncan v. Kahanamoku held that extension
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of martial law so long after the threat of invasion had ceased was illegal. Chief
Justice Stone commented in a concurring opinion that if the bars and restaurants
could be reopened within two months after Pearl Harbor, it was hard to see why
the courts should not have been able to reopen a full year later.
The good news for civil liberty in the Duncan decision was that the martial law
regime was held to be illegal; the bad news was that the Supreme Court handed
down its ruling in February 1946, six months after Japan surrendered, and a year
and a half after martial law had been lifted by the President.
One of the most controversial actions of the government during World War II
was the forced relocation of both Japanese aliens and American citizens of
Japanese ancestry away from the west coast. The Supreme Court reluctantly
upheld this program during the war, but the judgment of history has been that a
serious injustice was done these people, because there was no effort to separate
the loyal from the disloyal. As often happens, the latter-day judgments, in my
view, swing the pendulum too far the other way. With respect to the forced
relocation of Japanese-American who were born in the United States of Japanese
nationals -- and were therefore United States citizens -- even given the exigencies
of wartime it is difficult to defend their mass forced relocation under present
constitutional doctrine. But the relocation of the Japanese nationals residing in the
United States -- typically the parents of those born in this country -- stands on
quite a different footing. The authority of the government to deal with enemy
aliens in time of war, according to established case law from our Court, is
virtually plenary.
There were considerable differences between the way the Lincoln administration
infringed on civil liberty and the way FDR's infringed on it. Lincoln often acted
without any authority from Congress, and some of his measures unabashedly
suppressed dissent. There was no such suppression of dissent in World War II,
and most of the administration's acts hostile to civil liberty were based on laws
passed by Congress. So the general trend from the 1860s to the 1940s was in the
direction of greater sympathy to claims of civil liberty. But neither Lincoln nor
FDR -- nor Woodrow Wilson during World War I -- could be described by any
stretch of the imagination as a supporter of civil liberty.
Surely Abraham Lincoln is the greatest of American Presidents, and Franklin
Roosevelt ranks high among the runners up. Lincoln did not himself approve in
advance of most of the arrests, detentions, and trials before military commissions
which took place during the Civil War. His cabinet secretaries and other advisors
did that, but Lincoln acquiesced in almost all of their decisions. The same may be
said for Franklin Roosevelt during the Second World War; he did not originate
the plan for the relocation of the Japanese from the west coast, but he
unhesitatingly acquiesced in it when he was told that it was a necessary war
measure.
Lincoln felt that the great task of his administration was to preserve the Union. If
he could do it by following the Constitution, he would; but if he had to choose
between preserving the Union or obeying the Constitution, he would quite
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willingly choose the former course. Franklin Roosevelt felt the great task of his
wartime administration was to win World War II, and, like Lincoln, if forced to
choose between a necessary war measure and obeying the Constitution, he would
opt for the former.
This is not necessarily a condemnation. Both Lincoln and FDR fit into this mold.
The courts, for their part, have largely reserved the decisions favoring civil
liberties in wartime to be handed down after the war was over. Again, we see the
truth in the maxim Inter Arma Silent Leges -- time of war the laws are silent.
To lawyers and judges, this may seem a thoroughly undesirable state of affairs,
but in the greater scheme of things it may be best for all concerned. The fact that
judges are loath to strike down wartime measures while the war is going on is
demonstrated both by our experience in the Civil War and in World War II. This
fact represents something more than some sort of patriotic hysteria that holds the
judiciary in its grip; it has been felt and even embraced by members of the
Supreme Court who have championed civil liberty in peacetime. Witness Justice
Hugo Black: he wrote the opinion for the Court upholding the forced relocation
of Japanese Americans in 1944, but he also wrote the Court's opinion striking
down martial law in Hawaii two years later. While we would not want to
subscribe to the full sweep of the Latin maxim -- Inter Arma Silent Leges -- in
time of war the laws are silent, perhaps we can accept the proposition that though
the laws are not silent in wartime, they speak with a muted voice.
Thank you for inviting me to be with you today, and may your Bar Association
have an equally successful second century.
290
Lecture #17 – The Legal Profession
Since the earliest ages, the legal profession has been regulated by states.
Of the American Union. However, the legal training evolved through
time. Until the 1920’, future lawyers were trained in the offices of
established lawyers, where they started their career as a legal clerk.
However they had to pay a fee instead of being paid. The universitarian
teaching quasi did not exist. One of the rare law schools had been the
Litchfield School, created by Judge Tapping Reeve in 1784, which used
the lecture method. However, the school closed in 1833 due to the
competition of published commentaries such as those by Kent and Story.
The first University welcoming legal education was the William and Mary
College in Virginia in 1779. However, the real start of universitarian legal
education has been Harvard and its law school, founded by Isaac Parker,
Chief Justice of Massachusetts in 1815. In 1871, Harvard opted for a new
way of teaching developed by Langdell and Ames: the casebook method
instead of the lectures50. Today, most American law schools rest their
program on this method.
The “Bar” idea had been developed through lawyers associations. In
1870, the Association of the Bar of the City of New York had been founded
with the purpose to fight local government corruption51. Other local
associations followed and later national ones too, like the American Bar
Association (ABA) formed in 1878. Since 1921, compulsory bar
affiliation has been imposed by legislation on the model proposed by the
ABA and the American Judicature Society.
The legal profession is regulated by each state, which sets its own
requirements for lawyers52 to be admitted to practice. However, there is a
somewhat uniform examination since 1931 put in place by the National
Conference of Bar Examiners.
50
Kempin, op.cit., p.85 sq.
Farnsworth, Introducción al sistema legal de los Estados Unidos, Zavalia,
Buenos Aires, 1990, p.50.
52
Also called attorneys, attorneys-at-law, counsels, counselors, etc..
51
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A lawyer will practice in the state where he has been admitted and being
able as well to practice in other States if he has a three-to-five-year
experience. If he is entitled to practice before the highest State court, he
will be admitted before federal courts.
It has to be stressed that the “Latin notary” has no counterpart in the
United States where notaries are public officers authorized to administer
oaths, affidavits, certify certain types of documents and authenticate
signatures. In some jurisdictions an attorney may act as notary; in many
other jurisdictions private persons are permitted to take this office in order
to witness documents: bank officers, insurance and real estate agents
among others.
292
Part V – Proceedings
In regard to jurisdiction, Conflict laws and recognition of judgments, the
American system does not differentiate between interstate and
international cases: the same rules do apply, with, however, some
exceptions that will be underlined in given time. Concerning the legal
source, Private International Law is normally State law53. However,
Federal law may displace it if it previes its own substantial solution. But
first of all, let us introduce in a brief manner the proceedings before an
American court.
53
For the example of Texas: Cacheaux, Principles of Texas-Mexican
International Litigation as Applied by Texas Courts, Revista Mexicana de
Derecho Internacional Privado y Comparado, #12, 2002, p. 53.
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294
Lecture #18 – Proceedings
Section 1 – Civil Lawsuits
The prerequisite for a civil complaint to be heared is that the controversy
has to touch the legal relations of parties having in concreto adverse legal
interests and are reached in their personal interests. In other words, the
legal question must be ripe in order to avoid moot cases. This is called the
locus standi or the locus standing.
In Common law, demands normally go for damages, compensatory
damages for prejudice and punitive damages. To avoid that a situation
causes a damage, there is no remedy in Common law and it must be
sought or in a statute54 or in equity, where the plaintiff may obtain a
specific performance in order to obtain the execution of the contract or
injunctions like for instance in family matters.
Proceedings start with the pleadings. Plaintiff first files a complaint,
which he has to notify adequately55 to the defendant, informing him thus
that an action is brought against him. It may be a service of process – i.e. a
summons is physically handed over to the sued person56 - or a service by
mail. If he does not enter an appearance by responding to the complaint,
he will be judged by default. The defendant then may file a motion to
dismiss, which can be granted if the court decides that there is no ground
to state a cause of action. The defendant may also file a demurrer, which
leads to the dismissal of the case. If the complaint is upheld, the defendant
files either an answer or a counterclaim; in the latter case, the party
mentioned files a reply. The second step consists in the procedure of
discovery. Each party to a litigation is permitted to discover the plans of
the adverse litigant before the trial by various means ranging from
deposition (testimony under oath by witnesses outside the court in the
presence of attorneys for each side), to interrogatory (series of written
54
E.g.: The Sherman Act authorizes demands for injunctions.
There is no general rule for service of process. It has just to be “adequate” (for
the discussion what has to be meant by “adequate”: Mullane v. Central
Hanover Bank and Trust Co, 339 US 306 (1950).
56
See: Kadic v. Karadzic (2nd Cir, 1995).
55
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questions to be answered under oath), demand for production of
documents (when documents are refused, this may lead to a citation for
contempt of court), to request for admission (positive affirmation or denial
of a material fact or allegation at issue). The aim of these stages is to bring
the parties to develop a single precise issue of fact and law. If they fail to
do so, the judge may call a pre-trial conference, at which both sides are
invited to limit the issues and to obtain admissions that will avoid
unnecessary proof. Many pre-trial conferences result in the settlement of
the case without trial, especially since most states preview that the parties
to civil lawsuits are required to consider settlement through Alternative
Dispute Resolution (ADR). If no agreement has been reached, the plaintiff
requests the clerk of the court to put the case on a list, called a calendar or
docket, in order to set a date for the trial.
Parties may opt for a summary judgment trial or a jury trial. In the
first case, we face a short proceeding without the presence of a jury
where the judge hands out the judgment. In the second case, it is the
jury that decides the outcome of the dispute.
The first stage of the trial consists for the seized court to assert its
jurisdiction. It is the court’s power to adjudicate i.e. the power to render a
decision. More precisely, following the Black’s Law Dictionary,
“Jurisdiction is defined as the power of the court to decide a matter in
controversy and presupposes the existence of a duly constituted court with
control over the subject matter and the parties”57. While the defendant
may contest the jurisdiction of the court, it is up to the plaintiff to argue
why the court should have jurisdiction58. Once the jurisdiction established,
the court verifies if it has ratione materiae the competence to hear the case
following the class of actions it has been assigned by the State. In a last
step, venue has to be discussed in order to insure that the seized court is
the proper place for the trial of a suit. For example, a corporate defendant
in Houston might request a change of venue to San Antonio because
adverse publicity in Houston would make it impossible for the corporation
to get a fair trial in Houston, or because most of its files are located in San
Antonio. If there is no contestation to the venue, the court then may sit. In
short, the plaintiff must first find out if its case is a federal or state matter.
In a second stage, he must determine in which district or State he must
57
58
6th ed., 1990. 853.
Carteret Savings Bank v. Shusan, 954 F. 2d 141 (3d Cir. 1992), cert. denied
506 U.S. 817 (1992).
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look for the court. This is a jurisdiction question. If it is a State case, and
once the State determined, he must identify which court ratione materiae
may hear the case. And finally, he has to verify venue, meaning which
court is the most adequate from a geographical point of view for its client,
notwithstanding the fact that the court will verify venue in respect of both
parties.
Many trials involve a jury. The right to a jury trial is constitutionally
guaranteed. The VIIth amendment appends:
“In Suits at Common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any Court of the United States, than according
to the rules of the Common law”.
The latter is called Petit jury. Frederick Maitland defined the jury as “a
body of neighbours summoned under oath by a public official to answer
questions”. The trial jury answers the question of liability or nonliability.
It nearly exists nationwide. It is elected by the attorneys out of a pool by
voir dire proceedings. They can challenge an unlimited number of
proposed jurors for cause, and a limited number for peremptory challenge
that requires no justification. Once the jury is selected, its members are
sworn in59.
The next stage is the opening statement that allows each side to present
what the case is about. Right after, testimony begins. The questioning of a
witness called by the party is called direct examination; the questionning
by the opposite party is known as cross-examination. Finally, the parties
present their closing arguments. The jury then render its verdict that can
be, following the local rules, unanimously or at majority. The decision
only concerns matters of fact, because matters of law are decided by the
judge. That’s why the jury’s verdict is not motivated.
59
The jury constitutes the primary and essential guarantee for a fair trial. The
jury is the judge of the fact, while the magistrate is the keeper of the Law. On the
contrary to the European tradition, in the United States what does matter is that
the trial is impartial, even if sometimes it is not equitable. It is not the issue of the
trial that has the most significant importance, but the means that lead to the final
result. A fair trial leads always to a fair sentence. So at least it is said…
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Once the judgment rendered, it underlies the policy of preclusion: “One
trial of an issue is enough”60. If direct attacks are admitted, meaning to
appeal a decision, collateral attacks are neutralized through the res
judicata. Once the judgment is binding on the parties, it is no more
possible to bring the same claim before a court. In the same way, once
final, the judgment will be enforceable in all the others states through the
constitutional Full Faith and Credit Clause of Article IV Section 1 unless
there is an appeal. This second proceeding will only deal with matters of
law without revising matters of fact except if they were clearly erroneous.
Section 2 – Criminal Proceedings
In American law the most serious crimes are called felonies in opposition
to misdemeanors and infractions, the latter being only fined. There are
roughly two standards in distinguishing between felonies and
misdemeanors. The first standard involves the time of imprisonment:
felonies being all offenses punishable by more than a year of
imprisonment, the others being felonies. The second standard takes into
consideration the location of imprisonment. If the offense is punishable by
imprisonment in a penitentiary it is a felony; if punishable only by a jail
term it is a misdemeanor. Often both standards just overlap.
The first stage is the one of indictement issued by the prosecutor or by a
Grand Jury, as the Vth amendment states:
“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 service in time of War or
public danger”
While Grand jury only constitutes a constitutional right in regard to
federal indictments, half of the States, however, adopted it too. It is
composed of 24 jurors, who indict the accused person if there is enough
evidence to warrant a criminal trial61.
60
61
Balwin v. Iowa State Traveling Men’s Association, 283 US 522 (1931).
Kempin, Historical Introduction to Anglo-American Law, West Publishing, St
Paul, 1994, 54.
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Proceedings
Once indicted, the court proceeding starts, unless the defense and the
prosecutor entered into a plea bargaining where the defendant agree to
plead guilty to a lesser criminal charge in exchange for dropping ther
more serious charge. The Petit Jury that exists nationwide for criminal
proceedings, answers the question of guilt or innoncence; the verdict
being to be reached unanimously. If not, mistrial es declared and a new
trial may be held.
After the appellate process is exhausted, imprisoned defendants may use
post-conviction remedies to challenge their conviction on limited grounds
following state o federal legislation. Federal courts are open to both
categories of convicts for any challenge that is based on constitutional
grounds.
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Cases and Materials
Kadic v. Karadzic
Nos. 1541, 1544 -- August Term 1994
Argued: June 20, 1995 Decided: October 13, 1995)
Finally Submitted: October 11, 1995
Docket Nos. 94-9035, -9069
---------------------S. KADIC, on her own behalf and on behalf
of her infant sons BENJAMIN and OGNJEN,
INTERNATIONALNA INICIATIVA ZENA BOSNE I
HERCEGOVINE "BISER," and ZENE BOSNE I
HERCEGOVINE,
Plaintiffs-Appellants,
v.
RADOVAN KARADZIC,
Defendant-Appellee.
---------------------JANE DOE I, on behalf of herself and all
others similarly situated; and JANE DOE II,
on behalf of herself and as administratrix
of the estate of her deceased mother, and
on behalf of all other similarly situated,
Plaintiffs-Appellants,
v.
RADOVAN KARADZIC,
Defendant-Appellee.
---------------------Before: NEWMAN, Chief Judge , FEINBERG and WALKER, Circuit Judges .
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Proceedings
Appeals from the judgment entered September 19, 1994, in the Southern District
of New York (Peter K. Leisure, Judge) dismissing, for lack of subject matter
jurisdiction, two lawsuits by victims of atrocities allegedly committed in Bosnia
by the Bosnian-Serb leader, Radovan Karadzic. Doe v. Karadzic , 866 F. Supp.
734 (S.D.N.Y. 1994).
Judgment reversed and cases remanded.
JON O. NEWMAN, Chief Judge :
Most Americans would probably be surprised to learn that victims of atrocities
committed in Bosnia are suing the leader of the insurgent Bosnian-Serb forces in
a United States District Court in Manhattan. Their claims seek to build upon the
foundation of this Court's decision in Filártiga v. Peña-Irala , 630 F.2d 876 (2d
Cir. 1980), which recognized the important principle that the venerable Alien
Tort Act, 28 U.S.C. § 1350 (1988), enacted in 1789 but rarely invoked since then,
validly creates federal court jurisdiction for suits alleging torts committed
anywhere in the world against aliens in violation of the law of nations. The
pending appeals pose additional significant issues as to the scope of the Alien
Tort Act: whether some violations of the law of nations may be remedied when
committed by those not acting under the authority of a state; if so, whether
genocide, war crimes, and crimes against humanity are among the violations that
do not require state action; and whether a person, otherwise liable for a violation
of the law of nations, is immune from service of process because he is present in
the United States as an invitee of the United Nations.
These issues arise on appeals by two groups of plaintiffs-appellants from the
November 19, 1994, judgment of the United States District Court for the
Southern District of New York (Peter K. Leisure, Judge), dismissing, for lack of
subject matter jurisdiction, their suits against defendant-appellee Radovan
Karadzic, President of the self-proclaimed Bosnian-Serb republic of "Srpska."
Doe v. Karadzic , 866 F. Supp. 734 (S.D.N.Y. 1994) (" Doe "). For reasons set
forth below, we hold that subject matter jurisdiction exists, that Karadzic may be
found liable for genocide, war crimes, and crimes against humanity in his private
capacity and for other violations in his capacity as a state actor, and that he is not
immune from service of process. We therefore reverse and remand.
Background
The plaintiffs-appellants are Croat and Muslim citizens of the internationally
recognized nation of Bosnia-Herzegovina, formerly a republic of Yugoslavia.
Their complaints, which we accept as true for purposes of this appeal, allege that
they are victims, and representatives of victims, of various atrocities, including
brutal acts of rape, forced prostitution, forced impregnation, torture, and summary
execution, carried out by Bosnian-Serb military forces as part of a genocidal
campaign conducted in the course of the Bosnian civil war. Karadzic, formerly a
citizen of Yugoslavia and now a citizen of Bosnia-Herzegovina, is the President
of a three-man presidency of the self-proclaimed Bosnian-Serb republic within
Bosnia-Herzegovina, sometimes referred to as "Srpska," which claims to exercise
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lawful authority, and does in fact exercise actual control, over large parts of the
territory of Bosnia-Herzegovina. In his capacity as President, Karadzic possesses
ultimate command authority over the Bosnian-Serb military forces, and the
injuries perpetrated upon plaintiffs were committed as part of a pattern of
systematic human rights violations that was directed by Karadzic and carried out
by the military forces under his command. The complaints allege that Karadzic
acted in an official capacity either as the titular head of Srpska or in collaboration
with the government of the recognized nation of the former Yugoslavia and its
dominant constituent republic, Serbia.
The two groups of plaintiffs asserted causes of action for genocide, rape, forced
prostitution and impregnation, torture and other cruel, inhuman, and degrading
treatment, assault and battery, sex and ethnic inequality, summary execution, and
wrongful death. They sought compensatory and punitive damages, attorney's fees,
and, in one of the cases, injunctive relief. Plaintiffs grounded subject-matter
jurisdiction in the Alien Tort Act, the Torture Victim Protection Act of 1991
("Torture Victim Act"), Pub. L. No. 102-256, 106 Stat. 73 (1992), codified at 28
U.S.C. § 1350 note (Supp. V 1993), the general federal-question jurisdictional
statute, 28 U.S.C. § 1331 (1988), and principles of supplemental jurisdiction, 28
U.S.C. § 1367 (Supp. V 1993).
In early 1993, Karadzic was admitted to the United States on three separate
occasions as an invitee of the United Nations. According to affidavits submitted
by the plaintiffs, Karadzic was personally served with the summons and
complaint in each action during two of these visits while he was physically
present in Manhattan. Karadzic admits that he received the summons and
complaint in the Kadic action, but disputes whether the attempt to serve him
personally in the Doe action was effective.
In the District Court, Karadzic moved for dismissal of both actions on the
grounds of insufficient service of process, lack of personal jurisdiction, lack of
subject-matter jurisdiction, and nonjusticiability of plaintiffs' claims. However,
Karadzic submitted a memorandum of law and supporting papers only on the
issues of service of process and personal jurisdiction, while reserving the issues
of subject-matter jurisdiction and nonjusticiability for further briefing, if
necessary. The plaintiffs submitted papers responding only to the issues raised by
the defendant.
Without notice or a hearing, the District Court by-passed the issues briefed by the
parties and dismissed both actions for lack of subject-matter jurisdiction. In an
Opinion and Order, reported at 866 F. Supp. 734, the District Judge preliminarily
noted that the Court might be deprived of jurisdiction if the Executive Branch
were to recognize Karadzic as the head of state of a friendly nation, see Lafontant
v. Aristide , 844 F. Supp. 128 (E.D.N.Y. 1994) (head-of-state immunity), and that
this possibility could render the plaintiffs' pending claims requests for an advisory
opinion. The District Judge
recognized that this consideration was not dispositive but believed that it
"militates against this Court exercising jurisdiction." Doe , 866 F. Supp. at 738.
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Turning to the issue of subject-matter jurisdiction under the Alien Tort Act, the
Court concluded that "acts committed by non-state actors do not violate the law
of nations," id. at 739. Finding that "[t]he current Bosnian-Serb warring military
faction does not constitute a recognized state," id. at 741 and that "the members
of Karadzic's faction do not act under the color of any recognized state law," id. ,
the Court concluded that "the acts alleged in the instant action[s], while grossly
repugnant, cannot be remedied through [the Alien Tort Act]," id. at 740-41. The
Court did not consider the plaintiffs' alternative claim that Karadzic acted under
color of law by acting in concert with the Serbian Republic of the former
Yugoslavia, a recognized nation.
The District Judge also found that the apparent absence of state action barred
plaintiffs' claim under the Torture Victim Act, which expressly requires that an
individual defendant act "under actual or apparent authority, or color of law, of
any foreign nation," Torture Victim Act § 2(a). With respect to plaintiffs' further
claim that the law of nations, as incorporated into federal Common law, gives rise
to an implied cause of action over which the Court would have jurisdiction
pursuant to section 1331, the Judge found that the law of nations does not give
rise to implied rights of action absent specific Congressional authorization, and
that, in any event, such an implied right of action would not lie in the absence of
state action. Finally, having dismissed all of plaintiffs' federal claims, the Court
declined to exercise supplemental jurisdiction over their state-law claims.
Discussion
Though the District Court dismissed for lack of subject matter jurisdiction, the
parties have briefed not only that issue but also the threshold issues of personal
jurisdiction and justiciability under the political question doctrine. Karadzic urges
us to affirm on any one of these three grounds. We consider each in turn.
I. Subject-Matter Jurisdiction
Appellants allege three statutory bases for the subject matter jurisdiction of the
District Court -- the Alien Tort Act, the Torture Victim Act, and the general
federal-question jurisdictional statute.
A. The Alien Tort Act
1. General Application to Appellants' Claims
The Alien Tort Act provides:
The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the
United States.
28 U.S.C. § 1350 (1988). Our decision in Filártiga established that this statute
confers federal subject-matter jurisdiction when the following three conditions
are satisfied: (1) an alien sues (2) for a tort (3) committed in violation of the law
of nations ( i.e. , international law). Id. at 887; see also Amerada Hess Shipping
Corp. v. Argentine Republic , 830 F.2d 421, 425 (2d Cir. 1987), rev'd on other
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grounds , 488 U.S. 428 (1989). The first two requirements are plainly satisfied
here, and the only disputed issue is whether plaintiffs have pleaded violations of
international law.
Because the Alien Tort Act requires that plaintiffs plead a "violation of the law of
nations" at the jurisdictional threshold, this statute requires a more searching
review of the merits to establish jurisdiction than is required under the more
flexible "arising under" formula of section 1331. See Filártiga , 630 F.2d at 88788. Thus, it is not a sufficient basis for jurisdiction to plead merely a colorable
violation of the law of nations. There is no federal subject-matter jurisdiction
under the Alien Tort Act unless the complaint adequately pleads a violation of the
law of nations (or treaty of the United States).
Filártiga established that courts ascertaining the content of the law of nations
"must interpret international law not as it was in 1789, but as it has evolved and
exists among the nations of the world today." Id. at 881; see also Amerada Hess ,
830 F.2d at 425. We find the norms of contemporary international law by
"´consulting the works of jurists, writing professedly on public law; or by the
general usage and practice of nations; or by judicial decisions recognizing and
enforcing that law.'" Filártiga , 630 F.2d at 880 (quoting United States v. Smith ,
18 U.S. (5 Wheat.) 153, 160-61 (1820)). If this inquiry discloses that the
defendant's alleged conduct violates "well-established, universally recognized
norms of international law," id. at 888, as opposed to "idiosyncratic legal rules,"
id. at 881, then federal jurisdiction exists under the Alien Tort Act.
Karadzic contends that appellants have not alleged violations of the norms of
international law because such norms bind only states and persons acting under
color of a state's law, not private individuals. In making this contention, Karadzic
advances the contradictory positions that he is not a state actor, see Brief for
Appellee at 19, even as he asserts that he is the President of the self-proclaimed
Republic of Srpska, see statement of Radovan Karadzic, May 3, 1993, submitted
with Defendant's Motion to Dismiss. For their part, the Kadic appellants also take
somewhat inconsistent positions in pleading defendant's role as President of
Srpska, Kadic Complaint ¶ 13, and also contending that "Karadzic is not an
official of any government," Kadic Plaintiffs' Memorandum in Opposition to
Defendant's Motion to Dismiss at 21 n.25.
Judge Leisure accepted Karadzic's contention that "acts committed by non-state
actors do not violate the law of nations," Doe , 866 F. Supp. at 739, and
considered him to be a non-state actor. The Judge appears to have deemed state
action required primarily on the basis of cases determining the need for state
action as to claims of official torture, see , e.g. , Carmichael v. United
Technologies Corp. , 835 F.2d 109 (5th Cir. 1988), without consideration of the
substantial body of law, discussed below, that renders private individuals liable
for some international law violations.
We do not agree that the law of nations, as understood in the modern era,
confines its reach to state action. Instead, we hold that certain forms of conduct
violate the law of nations whether undertaken by those acting under the auspices
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of a state or only as private individuals. An early example of the application of
the law of nations to the acts of private individuals is the prohibition against
piracy. See United States v. Smith , 18 U.S. (5 Wheat.) 153, 161 (1820); United
States v. Furlong , 18 U.S. (5 Wheat.) 184, 196-97 (1820). In The Brig Malek
Adhel , 43 U.S. (2 How.) 210, 232 (1844), the Supreme Court observed that
pirates were " hostis humani generis " (an enemy of all mankind) in part because
they acted "without . . . any pretense of public authority." See generally 4
William Blackstone, Commentaries on the Laws of England 68 (facsimile of 1st
ed. 1765-1769, Univ. of Chi., ed. 1979). Later examples are prohibitions against
the slave trade and certain war crimes. See M. Cherif Bassiouni, Crimes Against
Humanity in International Criminal Law 193 (1992); Jordan Paust, The Other
Side of Right: Private Duties Under Human Rights Law , 5 Harv. Hum. Rts. J. 51
(1992).
The liability of private persons for certain violations of customary international
law and the availability of the Alien Tort Act to remedy such violations was early
recognized by the Executive Branch in an opinion of Attorney General Bradford
in reference to acts of American citizens aiding the French fleet to plunder British
property off the coast of Sierra Leone in 1795. See Breach of Neutrality , 1 Op.
Att'y Gen. 57, 59 (1795). The Executive Branch has emphatically restated in this
litigation its position that private persons may be found liable under the Alien
Tort Act for acts of genocide, war crimes, and other violations of international
humanitarian law. See Statement of Interest of the United States at 5-13.
The Restatement (Third) of the Foreign Relations Law of the United States
(1986) (" Restatement (Third) ") proclaims: "Individuals may be held liable for
offenses against international law, such as piracy, war crimes, and genocide."
Restatement (Third) pt. II, introductory note. The Restatement is careful to
identify those violations that are actionable when committed by a state,
Restatement (Third) § 702, and a more limited category of violations of
"universal concern," id. § 404, partially overlapping with those listed in section
702. Though the immediate focus of section 404 is to identify those offenses for
which a state has jurisdiction to punish without regard to territoriality or the
nationality of the offenders, cf. id. § 402(1)(a), (2), the inclusion of piracy and
slave trade from an earlier era and aircraft hijacking from the modern era
demonstrates that the offenses of "universal concern" include those capable of
being committed by non-state actors. Although the jurisdiction authorized by
section 404 is usually exercised by application of criminal law, international law
also permits states to establish appropriate civil remedies, id. § 404 cmt. b, such
as the tort actions authorized by the Alien Tort Act. Indeed, the two cases
invoking the Alien Tort Act prior to Filártiga both applied the civil remedy to
private action. See Adra v. Clift , 195 F. Supp. 857 (D. Md. 1961); Bolchos v.
Darrel , 3 F. Cas. 810 (D.S.C. 1795)(No. 1,607).
Karadzic disputes the application of the law of nations to any violations
committed by private individuals, relying on Filártiga and the concurring opinion
of Judge Edwards in Tel-Oren v. Libyan Arab Republic , 726 F.2d 774, 775 (D.C.
Cir. 1984), cert. denied , 470 U.S. 1003 (1985). Filártiga involved an allegation
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of torture committed by a state official. Relying on the United Nations'
Declaration on the Protection of All Persons from Being Subjected to Torture,
G.A. Res. 3452, U.N. GAOR, U.N. Doc. A/1034 (1975) (hereinafter "Declaration
on Torture"), as a definitive statement of norms of customary international law
prohibiting states from permitting torture, we ruled that " official torture is now
prohibited by the law of nations." Filártiga , 630 F.2d at 884 (emphasis added).
We had no occasion to consider whether international law violations other than
torture are actionable against private individuals, and nothing in Filártiga purports
to preclude such a result.
Nor did Judge Edwards in his scholarly opinion in Tel-Oren reject the application
of international law to any private action. On the contrary, citing piracy and
slave-trading as early examples, he observed that there exists a "handful of crimes
to which the law of nations attributes individual responsibility," id. at 795.
Reviewing authorities similar to those consulted in Filártiga , he merely
concluded that torture -- the specific violation alleged in Tel-Oren -- was not
within the limited category of violations that do not require state action.
Karadzic also contends that Congress intended the state-action requirement of the
Torture Victim Act to apply to actions under the Alien Tort Act. We disagree.
Congress enacted the Torture Victim Act to codify the cause of action recognized
by this Circuit in Filártiga , and to further extend that cause of action to plaintiffs
who are U.S. citizens. See H.R. Rep. No. 367, 102d Cong., 2d Sess., at 4 (1991),
reprinted in 1992 U.S.C.C.A.N. 84, 86 (explaining that codification of Filártiga
was necessary in light of skepticism expressed by Judge Bork's concurring
opinion in Tel-Oren ). At the same time, Congress indicated that the Alien Tort
Act "has other important uses and should not be replaced," because
claims based on torture and summary executions do not exhaust the list of actions
that may appropriately be covered [by the Alien Tort Act]. That statute should
remain intact to permit suits based on other norms that already exist or may ripen
in the future into rules of customary international law.
Id. The scope of the Alien Tort Act remains undiminished by enactment of the
Torture Victim Act.
2. Specific Application of Alien Tort Act to Appellants' Claims
In order to determine whether the offenses alleged by the appellants in this
litigation are violations of the law of nations that may be the subject of Alien Tort
Act claims against a private individual, we must make a particularized
examination of these offenses, mindful of the important precept that "evolving
standards of international law govern who is within the [Alien Tort Act's]
jurisdictional grant." Amerada Hess , 830 F.2d at 425. In making that inquiry, it
will be helpful to group the appellants' claims into three categories: (a) genocide,
(b) war crimes, and (c) other instances of inflicting death, torture, and degrading
treatment.
(a) Genocide . In the aftermath of the atrocities committed during the Second
World War, the condemnation of genocide as contrary to international law
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quickly achieved broad acceptance by the community of nations. In 1946, the
General Assembly of the United Nations declared that genocide is a crime under
international law that is condemned by the civilized world, whether the
perpetrators are "private individuals, public officials or statesmen." G.A. Res.
96(I), 1 U.N. GAOR, U.N. Doc. A/64/Add.1, at 188-89 (1946). The General
Assembly also affirmed the principles of Article 6 of the Agreement and Charter
Establishing the Nuremberg War Crimes Tribunal for punishing "´persecutions
on political, racial, or religious grounds,'" regardless of whether the offenders
acted "´as individuals or as members of organizations,'" In re Extradition of
Demjanjuk , 612 F. Supp. 544, 555 n.11 (N.D. Ohio) (quoting Article 6). See
G.A. Res. 95(I), 1 U.N. GAOR, U.N. Doc. A/64/Add.1, at 188 (1946).
The Convention on the Prevention and Punishment of the Crime of Genocide, 78
U.N.T.S. 277, entered into force Jan. 12, 1951, for the United States Feb. 23,
1989 (hereinafter "Convention on Genocide"), provides a more specific
articulation of the prohibition of genocide in international law. The Convention,
which has been ratified by more than 120 nations, including the United States,
see U.S. Dept. of State, Treaties in Force 345 (1994), defines "genocide" to mean
any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births with the group;
(e) Forcibly transferring children of the group to another group.
Convention on Genocide art. II. Especially pertinent to the pending appeal, the
Convention makes clear that "[p]ersons committing genocide . . . shall be
punished, whether they are constitutionally responsible rulers, public officials or
private individuals ." Id. art. IV (emphasis added). These authorities
unambiguously reflect that, from its incorporation into international law, the
proscription of genocide has applied equally to state and non-state actors.
The applicability of this norm to private individuals is also confirmed by the
Genocide Convention Implementation Act of 1987, 18 U.S.C. § 1091 (1988),
which criminalizes acts of genocide without regard to whether the offender is
acting under color of law, see id. § 1091(a) ("[w]hoever" commits genocide shall
be punished), if the crime is committed within the United States or by a U.S.
national, id. § 1091(d). Though Congress provided that the Genocide Convention
Implementation Act shall not "be construed as creating any substantive or
procedural right enforceable by law by any party in any proceeding," id. § 1092,
the legislative decision not to create a new private remedy does not imply that a
private remedy is not already available under the Alien Tort Act. Nothing in the
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Genocide Convention Implementation Act or its legislative history reveals an
intent by Congress to repeal the Alien Tort Act insofar as it applies to genocide,
and the two statutes are surely not repugnant to each other. Under these
circumstances, it would be improper to construe the Genocide Convention
Implementation Act as repealing the Alien Tort Act by implication. See
Rodriguez v. United States , 480 U.S. 522, 524 (1987) ("[R]epeals by implication
are not favored and will not be found unless an intent to repeal is clear and
manifest.") (citations and internal quotation marks omitted); United States v.
Cook , 922 F.2d 1026, 1034 (2d Cir.) ("mutual exclusivity" of statutes is required
to demonstrate Congress's "clear, affirmative intent to repeal"), cert. denied , 500
U.S. 941 (1991).
Appellants' allegations that Karadzic personally planned and ordered a campaign
of murder, rape, forced impregnation, and other forms of torture designed to
destroy the religious and ethnic groups of Bosnian Muslims and Bosnian Croats
clearly state a violation of the international law norm proscribing genocide,
regardless of whether Karadzic acted under color of law or as a private
individual. The District Court has subject-matter jurisdiction over these claims
pursuant to the Alien Tort Act.
(b) War crimes . Plaintiffs also contend that the acts of murder, rape, torture, and
arbitrary detention of civilians, committed in the course of hostilities, violate the
law of war. Atrocities of the types alleged here have long been recognized in
international law as violations of the law of war. See In re Yamashita , 327 U.S.
1, 14 (1946). Moreover, international law imposes an affirmative duty on military
commanders to take appropriate measures within their power to control troops
under their command for the prevention of such atrocities. Id. at 15-16.
After the Second World War, the law of war was codified in the four Geneva
Conventions, which have been ratified by more than 180 nations, including the
United States, see Treaties in Force , supra , 398-99. Common article 3, which is
substantially identical in each of the four Conventions, applies to "armed
conflict[s] not of an international character" and binds "each Party to the conflict
. . . to apply, as a minimum, the following provisions":
Persons taking no active part in the hostilities . . . shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in
any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particu-lar humiliating and degrading
treatment;
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(d) the passing of sentences and carrying out of executions without previous
judgment pronounced by a regularly constituted court . . . .
Geneva Convention I art. 3(1). Thus, under the law of war as codified in the
Geneva Conventions, all "parties" to a conflict -- which includes insurgent
military groups -- are obliged to adhere to these most fundamental requirements
of the law of war.
The offenses alleged by the appellants, if proved, would violate the most
fundamental norms of the law of war embodied in common article 3, which binds
parties to internal conflicts regardless of whether they are recognized nations or
roving hordes of insurgents. The liability of private individuals for committing
war crimes has been recognized since World War I and was confirmed at
Nuremberg after World War II, see Telford Taylor, Nuremberg Trials: War
Crimes and International Law , 450 Int'l Conciliation 304 (April 1949) (collecting
cases), and remains today an important aspect of international law, see Jordan
Paust, After My Lai: The Case for War Crimes Jurisdiction Over Civilians in
Federal District Courts , in 4 The Vietnam War and International Law 447 (R.
Falk ed. 1976). The District Court has jurisdiction pursuant to the Alien Tort Act
over appellants' claims of war crimes and other violations of international
humanitarian law.
(c) Torture and summary execution . In Filártiga , we held that official torture is
prohibited by universally accepted norms of international law, see 630 F.2d at
885, and the Torture Victim Act confirms this holding and extends it to cover
summary execution. Torture Victim Act §§ 2(a), 3(a). However, torture and
summary execution -- when not perpetrated in the course of genocide or war
crimes -- are proscribed by international law only when committed by state
officials or under color of law. See Declaration on Torture art. 1 (defining torture
as being "inflicted by or at the instigation of a public official"); Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment pt. I, art. 1, 23 I.L.M. 1027 (1984), as modified , 24 I.L.M. 535
(1985), entered into force June 26, 1987, ratified by United States Oct. 21, 1994,
34 I.L.M. 590, 591 (1995) (defining torture as "inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in
an official capacity"); Torture Victim Act § 2(a) (imposing liability on
individuals acting "under actual or apparent authority, or color of law, of any
foreign nation").
In the present case, appellants allege that acts of rape, torture, and summary
execution were committed during hostilities by troops under Karadzic's command
and with the specific intent of destroying appellants' ethnic-religious groups.
Thus, many of the alleged atrocities are already encompassed within the
appellants' claims of genocide and war crimes. Of course, at this threshold stage
in the proceedings it cannot be known whether appellants will be able to prove
the specific intent that is an element of genocide, or prove that each of the alleged
torts were committed in the course of an armed conflict, as required to establish
war crimes. It suffices to hold at this stage that the alleged atrocities are
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actionable under the Alien Tort Act, without regard to state action, to the extent
that they were committed in pursuit of genocide or war crimes, and otherwise
may be pursued against Karadzic to the extent that he is shown to be a state actor.
Since the meaning of the state action requirement for purposes of international
law violations will likely arise on remand and has already been considered by the
District Court, we turn next to that requirement.
3. The State Action Requirement for International Law Violations
In dismissing plaintiffs' complaints for lack of subject-matter jurisdiction, the
District Court concluded that the alleged violations required state action and that
the "Bosnian-Serb entity" headed by Karadzic does not meet the definition of a
state. Doe , 866 F. Supp. at 741 n.12. Appellants contend that they are entitled to
prove that Srpska satisfies the definition of a state for purposes of international
law violations and, alternatively, that Karadzic acted in concert with the
recognized state of the former Yugoslavia and its constituent republic, Serbia.
(a) Definition of a state in international law . The definition of a state is well
established in international law:
Under international law, a state is an entity that has a defined territory and a
permanent population, under the control of its own government, and that engages
in, or has the capacity to engage in, formal relations with other such entities.
Restatement (Third) § 201; accord Klinghoffer , 937 F.2d at 47; National
Petrochemical , 860 F.2d at 553; see also Texas v. White , 74 U.S. (7 Wall.) 700,
720 (1868). "[A]ny government, however violent and wrongful in its origin, must
be considered a de facto government if it was in the full and actual exercise of
sovereignty over a territory and people large enough for a nation." Ford v. Surget
, 97 U.S. (7 Otto) 594, 620 (1878) (Clifford, J., concurring).
Although the Restatement's definition of statehood requires the capacity to
engage in formal relations with other states, it does not require recognition by
other states. See Restatement (Third) § 202 cmt. b ("An entity that satisfies the
requirements of § 201 is a state whether or not its statehood is formally
recognized by other states."). Recognized states enjoy certain privileges and
immunities relevant to judicial proceedings, see , e.g. , Pfizer Inc. v. India , 434
U.S. 308, 318-20 (1978) (diversity jurisdiction); Sabbatino , 376 U.S. at 408 -12
(access to U.S. courts); Lafontant , 844 F. Supp. at 131 (head-of-state immunity),
but an unrecognized state is not a juridical nullity. Our courts have regularly
given effect to the "state" action of unrecognized states. See , e.g. , United States
v. Insurance Cos. , 89 U.S. (22 Wall.) 99, 101-03 (1875) (seceding states in Civil
War); Thorington v. Smith , 75 U.S. (8 Wall.) 1, 9-12 (1869) (same); Carl Zeiss
Stiftung v. VEB Carl Zeiss Jena , 433 F.2d 686, 699 (2d Cir. 1970), cert. denied ,
403 U.S. 905 (1971) (post-World War II East Germany).
The customary international law of human rights, such as the proscription of
official torture, applies to states without distinction between recognized and
unrecognized states. See Restatement (Third) §§ 207, 702. It would be anomalous
indeed if non-recognition by the United States, which typically reflects disfavor
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with a foreign regime -- sometimes due to human rights abuses -- had the
perverse effect of shielding officials of the unrecognized regime from liability for
those violations of international law norms that apply only to state actors.
Appellants' allegations entitle them to prove that Karadzic's regime satisfies the
criteria for a state, for purposes of those international law violations requiring
state action. Srpska is alleged to control defined territory, control populations
within its power, and to have entered into agreements with other governments. It
has a president, a legislature, and its own currency. These circumstances readily
appear to satisfy the criteria for a state in all aspects of international law.
Moreover, it is likely that the state action concept, where applicable for some
violations like "official" torture, requires merely the semblance of official
authority. The inquiry, after all, is whether a person purporting to wield official
power has exceeded internationally recognized standards of civilized conduct, not
whether statehood in all its formal aspects exists.
(b) Acting in concert with a foreign state . Appellants also sufficiently alleged
that Karadzic acted under color of law insofar as they claimed that he acted in
concert with the former Yugoslavia, the statehood of which is not disputed. The
"color of law" jurisprudence of 42 U.S.C. § 1983 is a relevant guide to whether a
defendant has engaged in official action for purposes of jurisdiction under the
Alien Tort Act. See Forti v. Suarez-Mason , 672 F. Supp. 1531, 1546 (N.D. Cal.
1987), reconsideration granted in part on other grounds , 694 F. Supp. 707 (N.D.
Cal. 1988). A private individual acts under color of law within the meaning of
section 1983 when he acts together with state officials or with significant state
aid. See Lugar v. Edmonson Oil Co. , 457 U.S. 922, 937 (1982). The appellants
are entitled to prove their allegations that Karadzic acted under color of law of
Yugoslavia by acting in concert with Yugoslav officials or with significant
Yugoslavian aid.
B. The Torture Victim Protection Act
The Torture Victim Act, enacted in 1992, provides a cause of action for official
torture and extrajudicial killing:
An individual who, under actual or apparent authority, or color of law, of any
foreign nation-(1) subjects an individual to torture shall, in a civil action, be liable for damages
to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable
for damages to the individual's legal representative, or to any person who may be
a claimant in an action for wrongful death.
Torture Victim Act § 2(a). The statute also requires that a plaintiff exhaust
adequate and available local remedies, id. § 2(b), imposes a ten-year statute of
limitations, id. § 2(c), and defines the terms "extrajudicial killing" and "torture,"
id. § 3.
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By its plain language, the Torture Victim Act renders liable only those
individuals who have committed torture or extrajudicial killing "under actual or
apparent authority, or color of law, of any foreign nation." Legislative history
confirms that this language was intended to "make[] clear that the plaintiff must
establish some
governmental involvement in the torture or killing to prove a claim," and that the
statute "does not attempt to deal with torture or killing by purely private groups."
H.R. Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991), reprinted in 1992
U.S.C.C.A.N. 84, 87. In construing the terms "actual or apparent authority" and
"color of law," courts are instructed to look to principles of agency law and to
jurisprudence under 28 U.S.C. § 1983, respectively. Id.
Though the Torture Victim Act creates a cause of action for official torture, this
statute, unlike the Alien Tort Act, is not itself a jurisdictional statute. The Torture
Victim Act permits the appellants to pursue their claims of official torture under
the jurisdiction conferred by the Alien Tort Act and also under the general federal
question jurisdiction of section 1331, see Xuncax v. Gramajo , 886 F. Supp. 162,
178 (D. Mass. 1995), to which we now turn.
C. Section 1331
The appellants contend that section 1331 provides an independent basis for
subject-matter jurisdiction over all claims alleging violations of international law.
Relying on the settled proposition that federal Common law incorporates
international law, see The Paquete Habana , 175 U.S. 677, 700 (1900); In re
Estate of Ferdinand E. Marcos Human Rights Litigation ( Marcos I ), 978 F.2d
493, 502 (9th Cir. 1992), cert. denied , 113 S. Ct. 2960 (1993); Filártiga , 630
F.2d at 886, they reason that causes of action for violations of international law
"arise under" the laws of the United States for purposes of jurisdiction under
section 1331. Whether that is so is an issue of some uncertainty that need not be
decided in this case.
In Tel-Oren Judge Edwards expressed the view that section 1331 did not supply
jurisdiction for claimed violations of international law unless the plaintiffs could
point to a remedy granted by the law of nations or argue successfully that such a
remedy is implied. Tel-Oren , 726 F.2d at 779-80 n.4. The law of nations
generally does not create private causes of action to remedy its violations, but
leaves to each nation the task of defining the remedies that are available for
international law violations. Id. at 778 (Edwards, J., concurring). Some district
courts, however, have upheld section 1331 jurisdiction for international law
violations. See Abebe-Jiri v. Negewo , No. 90-2010 (N.D. Ga. Aug. 20, 1993),
appeal argued , No. 93-9133 (11th Cir. Jan. 10, 1995); Martinez-Baca v. SuarezMason , No. 87-2057, slip op. at 4-5 (N.D. Cal. Apr. 22, 1988); Forti v. SuarezMason , 672 F. Supp. 1531, 1544 (N.D. Cal. 1987).
We recognized the possibility of section 1331 jurisdiction in Filártiga , 630 F.2d
at 887 n.22, but rested jurisdiction solely on the applicable Alien Tort Act. Since
that Act appears to provide a remedy for the appellants' allegations of violations
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related to genocide, war crimes, and official torture, and the Torture Victim Act
also appears to provide a remedy for their allegations of official torture, their
causes of action are statutorily authorized, and, as in Filártiga , we need not rule
definitively on whether any causes of action not specifically authorized by statute
may be implied by international law standards as incorporated into United States
law and grounded on section 1331 jurisdiction.
II. Service of Process and Personal Jurisdiction
Appellants aver that Karadzic was personally served with process while he was
physically present in the Southern District of New York. In the Doe action, the
affidavits detail that on February 11, 1993, process servers approached Karadzic
in the lobby of the Hotel Intercontinental at 111 East 48th St. in Manhattan,
called his name and identified their purpose, and attempted to hand him the
complaint from a distance of two feet, that security guards seized the complaint
papers, and that the papers fell to the floor. Karadzic submitted an affidavit of a
State Department security officer, who generally confirmed the episode, but
stated that the process server did not come closer than six feet of the defendant. In
the Kadic action, the plaintiffs obtained from Judge Owen an order for alternate
means of service, directing service by delivering the complaint to a member of
defendant's State Department security detail, who was ordered to hand the
complaint to the defendant. The security officer's affidavit states that he received
the complaint and handed it to Karadzic outside the Russian Embassy in
Manhattan. Karadzic's statement confirms that this occurred during his second
visit to the United States, sometime between February 27 and March 8, 1993.
Appellants also allege that during his visits to New York City, Karadzic stayed at
hotels outside the "headquarters district" of the United Nations and engaged in
non-United Nations-related activities such as fund-raising.
Fed. R. Civ. P. 4(e)(2) specifically authorizes personal service of a summons and
complaint upon an individual physically present within a judicial district of the
United States, and such personal service comports with the requirements of due
process for the assertion of personal jurisdiction. See Burnham v. Superior Court
, 495 U.S. 604 (1990).
Nevertheless, Karadzic maintains that his status as an invitee of the United
Nations during his visits to the United States rendered him immune from service
of process. He relies on both the Agreement Between the United Nations and the
United States of America Regarding the Headquarters of the United Nations,
reprinted at 22 U.S.C. § 287 note (1988) ("Headquarters Agreement"), and a
claimed federal Common law immunity. We reject both bases for immunity from
service.
A. Headquarters Agreement
The Headquarters Agreement provides for immunity from suit only in narrowly
defined circumstances. First, "service of legal process . . . may take place within
the headquarters district only with the consent of and under conditions approved
by the Secretary-General." Id. § 9(a). This provision is of no benefit to Karadzic,
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because he was not served within the well-defined confines of the "headquarters
district," which is bounded by Franklin D. Roosevelt Drive, 1st Avenue, 42nd
Street, and 48th Street, see id. annex 1. Second, certain representatives of
members of the United Nations, whether residing inside or outside of the
"headquarters district," shall be entitled to the same privileges and immunities as
the United States extends to accredited diplomatic envoys. Id. § 15. This
provision is also of no benefit to Karadzic, since he is not a designated
representative of any member of the United Nations.
A third provision of the Headquarters Agreement prohibits federal, state, and
local authorities of the United States from "impos[ing] any impediments to transit
to or from the headquarters district of . . . persons invited to the headquarters
district by the United Nations . . . on official business." Id. § 11. Karadzic
maintains that allowing service of process upon a United Nations invitee who is
on official business would violate this section, presumably because it would
impose a potential burden -- exposure to suit -- on the invitee's transit to and from
the headquarters district. However, this Court has previously refused "to extend
the immunities provided by the Headquarters Agreement beyond those explicitly
stated." See Klinghoffer v. S.N.C. Achille Lauro , 937 F.2d 44, 48 (2d Cir. 1991).
We therefore reject Karadzic's proposed construction of section 11, because it
would effectively create an immunity from suit for United Nations invitees where
none is provided by the express terms of the Headquarters Agreement.
The parties to the Headquarters Agreement agree with our construction of it. In
response to a letter from plaintiffs' attorneys opposing any grant of immunity to
Karadzic, a responsible State Department official wrote: "Mr. Karadzic's status
during his recent visits to the United States has been solely as an ´invitee' of the
United Nations, and as such he enjoys no immunity from the jurisdiction of the
courts of the United States." Letter from Michael J. Habib, Director of Eastern
European Affairs, U.S. Dept. of State, to Beth Stephens (Mar. 24, 1993) ("Habib
Letter"). Counsel for the United Nations has also issued an opinion stating that
although the United States must allow United Nations invitees access to the
Headquarters District, invitees are not immune from legal process while in the
United State at locations outside of the Headquarters District. See In re Galvao ,
[1963] U.N. Jur. Y.B. 164 (opinion of U.N. legal counsel); see also Restatement
(Third) § 469 reporter's note 8 (U.N. invitee "is not immune from suit or legal
process outside the headquarters district during his sojourn in the United States").
B. Federal Common law immunity
Karadzic nonetheless invites us to fashion a federal Common law immunity for
those within a judicial district as a United Nations invitee. He contends that such
a rule is necessary to prevent private litigants from inhibiting the United Nations
in its ability to consult with invited visitors. Karadzic analogizes his proposed
rule to the "government contacts exception" to the District of Columbia's longarm statute, which has been broadly characterized to mean that "mere entry [into
the District of Columbia] by non-residents for the purpose of contacting federal
government agencies cannot serve as a basis for in personam jurisdiction," Rose
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v. Silver , 394 A.2d 1368, 1370 (D.C. 1978); see also Naartex Consulting Corp.
v. Watt , 722 F.2d 779, 785-87 (D.C. Cir. 1983) (construing government contacts
exception to District of Columbia's long-arm statute), cert. denied , 467 U.S. 1210
(1984). He also points to a similar restriction upon assertion of personal
jurisdiction on the basis of the presence of an individual who has entered a
jurisdiction in order to attend court or otherwise engage in litigation. See
generally 4 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1076 (2d ed. 1987).
Karadzic also endeavors to find support for a Common law immunity in our
decision in Klinghoffer . Though, as noted above, Klinghoffer declined to extend
the immunities of the Headquarters Agreement beyond those provided by its
express provisions, the decision applied immunity considerations to its
construction of New York's long-arm statute, N.Y. Civ. Prac. L. & R. 301
(McKinney 1990), in deciding whether the Palestine Liberation Organization
(PLO) was doing business in the state. Klinghoffer construed the concept of
"doing business" to cover only those activities of the PLO that were not United
Nations-related. See 937 F.2d at 51.
Despite the considerations that guided Klinghoffer in its narrowing construction
of the general terminology of New York's long-arm statute as applied to United
Nations activities, we decline the invitation to create a federal Common law
immunity as an extension of the precise terms of a carefully crafted treaty that
struck the balance between the interests of the United Nations and those of the
United States.
Finally, we note that the mere possibility that Karadzic might at some future date
be recognized by the United States as the head of state of a friendly nation and
might thereby acquire head-of-state immunity does not transform the appellants'
claims into a nonjusticiable request for an advisory opinion, as the District Court
intimated. Even if such future recognition, determined by the Executive Branch,
see Lafontant , 844 F. Supp. at 133, would create head-of-state immunity, but see
In re Doe , 860 F.2d 40, 45 (2d Cir. 1988) (passage of Foreign Sovereign
Immunities Act leaves scope of head-of-state immunity uncertain), it would be
entirely inappropriate for a court to create the functional equivalent of such an
immunity based on speculation about what the Executive Branch might do in the
future. See Mexico v. Hoffman , 324 U.S. 30, 35 (1945) ("[I]t is the duty of the
courts, in a matter so intimately associated with our foreign policy . . ., not to
enlarge an immunity to an extent which the government . . . has not seen fit to
recognize.").
In sum, if appellants personally served Karadzic with the summons and complaint
while he was in New York but outside of the U.N. headquarters district, as they
are prepared to prove, he is subject to the personal jurisdiction of the District
Court.
III. Justiciability
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We recognize that cases of this nature might pose special questions concerning
the judiciary's proper role when adjudication might have implications in the
conduct of this nation's foreign relations. We do not read Filártiga to mean that
the federal judiciary must always act in ways that risk significant interference
with United States foreign relations. To the contrary, we recognize that suits of
this nature can present difficulties that implicate sensitive matters of diplomacy
historically reserved to the jurisdiction of the political branches. See First
National Bank v. Banco Nacional de Cuba , 406 U.S. 759, 767 (1972). We
therefore proceed to consider whether, even though the jurisdictional threshold is
satisfied in the pending cases, other considerations relevant to justiciability weigh
against permitting the suits to proceed.
Two nonjurisdictional, prudential doctrines reflect the judiciary's concerns
regarding separation of powers: the political question doctrine and the act of state
doctrine. It is the "´constitutional' underpinnings" of these doctrines that
influenced the concurring opinions of Judge Robb and Judge Bork in Tel-Oren .
Although we too recognize the potentially detrimental effects of judicial action in
cases of this nature, we do not embrace the rather categorical views as to the
inappropriateness of judicial action urged by Judges Robb and Bork. Not every
case "touching foreign relations" is non-justiciable, see Baker v. Carr , 369 U.S.
186, 211 (1962); Lamont v. Woods , 948 F.2d 825, 831-32 (2d Cir. 1991), and
judges should not reflexively invoke these doctrines to avoid difficult and
somewhat sensitive decisions in the context of human rights. We believe a
preferable approach is to weigh carefully the relevant considerations on a caseby-case basis. This will permit the judiciary to act where appropriate in light of
the express legislative mandate of the Congress in section 1350, without
compromising the primacy of the political branches in foreign affairs.
Karadzic maintains that these suits were properly dismissed because they present
nonjusticiable political questions. We disagree. Although these cases present
issues that arise in a politically charged context, that does not transform them into
cases involving nonjusticiable political questions. "[T]he doctrine ´is one of
"political questions," not one of "political cases."'" Klinghoffer , 937 F.2d at 49
(quoting Baker , 369 U.S. at 217 ).
A nonjusticiable political question would ordinarily involve one or more of the
following factors:
[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or [4]
the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
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Baker v. Carr , 369 U.S. at 217 ; see also Can v. United States , 14 F.3d 160, 163
(2d Cir. 1994). With respect to the first three factors, we have noted in a similar
context involving a tort suit against the PLO that "[t]he department to whom this
issue has been ´constitutionally committed' is none other than our own -- the
Judiciary." Klinghoffer , 937 F.2d at 49. Although the present actions are not
based on the Common law of torts, as was Klinghoffer , our decision in Filártiga
established that universally recognized norms of international law provide
judicially discoverable and manageable standards for adjudicating suits brought
under the Alien Tort Act, which obviates any need to make initial policy
decisions of the kind normally reserved for nonjudicial discretion. Moreover, the
existence of judicially discoverable and manageable standards further undermines
the claim such suits relate to matters that are constitutionally committed to
another branch. See Nixon v. United States , 113 S. Ct. 732, 735 (1993).
The fourth through sixth Baker factors appear to be relevant only if judicial
resolution of a question would contradict prior decisions taken by a political
branch in those limited contexts where such contradiction would seriously
interfere with important governmental interests. Disputes implicating foreign
policy concerns have the potential to raise political question issues, although, as
the Supreme Court has wisely cautioned, "it is ´error to suppose that every case or
controversy which touches foreign relations lies beyond judicial cognizance.'"
Japan Whaling Ass'n v. American Cetacean Society , 478 U.S. 221, 229-30
(1986) (quoting Baker , 369 U.S. at 211 ).
The act of state doctrine, under which courts generally refrain from judging the
acts of a foreign state within its territory, see Banco Nacional de Cuba v.
Sabbatino , 376 U.S. 398 , 428; Underhill v. Hernandez , 168 U.S. 250, 252
(1897), might be implicated in some cases arising under section 1350. However,
as in Filártiga , 630 F.2d at 889, we doubt that the acts of even a state official,
taken in violation of a nation's fundamental law and wholly unratified by that
nation's government, could properly be characterized as an act of state.
In the pending appeal, we need have no concern that interference with important
governmental interests warrants rejection of appellants' claims. After
commencing their action against Karadzic, attorneys for the plaintiffs in Doe
wrote to the Secretary of State to oppose reported attempts by Karadzic to be
granted immunity from suit in the United States; a copy of plaintiffs' complaint
was attached to the letter. Far from intervening in the case to urge rejection of the
suit on the ground that it presented political questions, the Department responded
with a letter indicating that Karadzic was not immune from suit as an invitee of
the United Nations. See Habib Letter, supra . After oral argument in the pending
appeals, this Court wrote to the Attorney General to inquire whether the United
States wished to offer any further views concerning any of the issues raised. In a
"Statement of Interest," signed by the Solicitor General and the State
Department's Legal Adviser, the United States has expressly disclaimed any
concern that the political question doctrine should be invoked to prevent the
litigation of these lawsuits: "Although there might be instances in which federal
courts are asked to issue rulings under the Alien Tort Statute or the Torture
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Victim Protection Act that might raise a political question, this is not one of
them." Statement of Interest of the United States at 3. Though even an assertion
of the political question doctrine by the Executive Branch, entitled to respectful
consideration, would not necessarily preclude adjudication, the Government's
reply to our inquiry reenforces our view that adjudication may properly proceed.
As to the act of state doctrine, the doctrine was not asserted in the District Court
and is not before us on this appeal. See Filártiga , 630 F.2d at 889. Moreover, the
appellee has not had the temerity to assert in this Court that the acts he allegedly
committed are the officially approved policy of a state. Finally, as noted, we think
it would be a rare case in which the act of state doctrine precluded suit under
section 1350. Banco Nacional was careful to recognize the doctrine "in the
absence of . . . unambiguous agreement regarding controlling legal principles,"
376 U.S. at 428 , such as exist in the pending litigation, and applied the doctrine
only in a context -- expropriation of an alien's property -- in which world opinion
was sharply divided, see id. at 428-30.
Finally, we note that at this stage of the litigation no party has identified a more
suitable forum, and we are aware of none. Though the Statement of the United
States suggests the general importance of considering the doctrine of forum non
conveniens , it seems evident that the courts of the former Yugoslavia, either in
Serbia or war-torn Bosnia, are not now available to entertain plaintiffs' claims,
even if circumstances concerning the location of witnesses and documents were
presented that were sufficient to overcome the plaintiffs' preference for a United
States forum.
Conclusion
The judgment of the District Court dismissing appellants' complaints for lack of
subject-matter jurisdiction is reversed, and the cases are remanded for further
proceedings in accordance with this opinion.
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A – Jurisdiction
Lecture # 19: Jurisdiction in personam
Section 1 – Transactions
Historically the jurisdiction of courts to render judgment in personam was
grounded on their de facto power over the defendant’s person in the pure
spirit of territorialism, as illustrated by Pennoyer v. Neff 62. Hence his
presence within the territorial jurisdiction of a court was prerequisite to its
rendition of a judgment. However, through the interpenetration of
economies, this principle was no more sufficient.
Now that the capias ad respondendum has given way to personal service
of summons or other forms of notice, due process requires only that in
order to subject a defendant who is not present within the territory of the
forum, has a certain minimum contacts with it such that the maintenance
of the suit does not offend “traditional notions of fair play and substantial
justice”63.
In 1945, the Supreme Court defined in one of its most famous ruling, the
International Shoe case64, the criterium of minimum contacts: the quality
and the nature of activities has to be considered. Actually if a person
exercises the privilege of conducting activities within a state, it enjoys the
benefits and protection of the laws of that state. However privileges also
give rise to obligations. So far as those obligations arise out of or are
connected with the activities within the state, a procedure that requires the
defendant to respond to a suit brought to enforce them can, in most
instances, hardly be said to be undue. Whether due process is satisfied
depends rather upon the quality and nature of the activity in relation to the
fair and orderly administration of the laws, which it was the purpose of
the due process clause to insure. Following Mc Gee v. Int’l Life Insurance
62
95 US 714 (1877).
Milliken v. Meyer, 311 US 457.
64
International Shoe Co v. State of Washington, 326 US 310.
63
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Jurisdiction in personam
Co65, it is sufficient for purposes of due process that the suit is based on
one single but substantial contact like a contract that has substantial
connection with the State. In a more general way, Hanson v. Denckla66
underlines that minimum contacts must have a basis in some act by which
the defendant purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and
protections of its laws. Thus, even if the defendant would suffer minimal
or no inconvenience from being forced to litigate before the tribunals of
another state; even if the forum state has a strong interest in applying its
law to the controversy; even if the forum state is the most convenient
location for litigation, the due process clause, acting as an instrument of
interstate federalism, may sometimes act to divest the state of its power to
render a valid judgment.
The International Shoe decision made it clear that state courts jurisdiction
was considerably greater than hitherto supposed. It remained for each
state to determine the extent to which it would authorize its courts to
“reach out”, consistent with due process. Illinois showed the way in 1955,
and its type of “long-arm statute”, providing detailed and specific
guidance as to the defendant’s activities or contacts that would permit the
exercise of jurisdiction67. From there on, courts have jurisdiction if for
instance there is transaction of any business within the state, commission
of a tortuous act within the state or, last but not least, contracts of
insurance on local risks.
In 1966, Von Mehren and Trautmann suggested in a very famous article68
to distinguish between general and specific jurisdiction. Their proposal
has been followed by the courts. In Helicopteros nacionales de
Colombia69, the Supreme Court ruled that in order for a court to assert
general jurisdiction, the defendant must have continuous and systematic
65
355 US 220 (1957).
357 US 235 (1958).
67
Example of a long-arm statute : The tribunals of Maryland have juridiction
over persons who “cause tortious injury in the State or outside of the State by
an act or omission outside the State if he regularly does or solicits business,
engages in any other persistent course of conduct in the State or derives
substantial revenue from goods, food, services, or manufactured products
used or consumed in the State” (MD. Code ANN., Cts & Jud. Proc. § 6-103
(b) (4).
68
Jurisdiction to Adjudicate: A suggested Analysis, Harvard Law Review,
1966.1121.
69
Helicopteros nacionales de Colombia S.A. v. Hall, 466 US 408, 415 (1984).
66
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contacts with the forum state. In other words, general jurisdiction refers to
the authority of a court to hear any cause of action involving a defendant,
regardless of whether the cause of action arose from the defendant's
activities within the forum state. Natural persons who live and firms
incorporated in the state are subject to general jurisdiction. However, in
regard to other forms of “continous and systematic contacts”, claims of
general jurisdiction over nonresidents more often than not are denied70.
For instance, even at regular intervals, purchasing goods and services,
repeated business trips, local advertising, and so on, are insufficient to
establish general jurisdiction71.
On the contrary, following, Sher v. Johnson72, specific jurisdiction
refers to a situation in which the cause of action arises directly from a
defendant's contacts with the forum state. First, the defendant must
perform some act or consummate some transaction within the forum by
which it purposefully avails itself of the privilege of conducting activities
in the forum, thereby invoking the benefits and protections of the forum
and having fair warning that a particular activity may subject to
jurisdiction73. Second, the claim must be one that arises out of or results
from the defendant's forum-related activities74. Third, the court's exercise
of jurisdiction must be reasonable75. In 1980, the Supreme Court added
another criterion: foreseeability76. The foreseeability that is critical to the
due process analysis is that the defendant's conduct and connection with
the forum State are such that he should reasonably expect to be haled into
court there. In regard to the stream of commerce doctrine, the Supreme
Court ruled that “the placement of a product into the stream of commerce,
without more is not an act of the defendant purposefully directed toward
the forum State. Additional conduct on the part of the defendant is
necessary to establish an act purposefully directed toward the forum State.
Such conduct may include designing the product for market in the forum
State, advertising in the forum State, established channels for providing
regular advice to customers in the forum State, or marketing the product
through a distributor who agreed to serve as a sales agent in the forum
70
Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851 n.3 (9th Cir.
1993).
71
Adams, Personal jurisdiction over nonresidents, International Litigation, ABA,
2003.113, 115 sq.
72
911 F.2d 1357, 1361 (1990).
73
Burger King v. Rudzewicz, 471 U.S. 462, 472, 475 (1985).
74
Ballard v. Savage, 65 F. 3d 1495 (9th Cir. 1995).
75
Idem.
76
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980).
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Jurisdiction in personam
State”77. However, since then, it is a fact that the courts facing similar
issues remain unsure how to interprete the Asahi doctrine78.
Even if a court finds that there are sufficient contacts to establish
jurisdiction, it cannot exercise it if doing so would offend traditional
notions of fair play and substantial justice and consequently being
unreasonable and unfair. The determining factors are, among others, (1)
the defendant’s burden, (2) the plaintiff’s interest in convenient and
effective relief, and (3) the forum state’s interest. Nonetheless, one dare to
say that as general approach, the fact that a defendant corporation is
headquarted in a foreign country will militate against a finding that
jurisdiction is fair, even if, as one author points it out, “still the abovedescribed factors are amorphous and courts seem to use them to
rationalize whatever decision they have already made”79.
Last but not least, nonetheless what I did say at the beginning, there is still
a survival of the Pennoyer territorialism80 in an active form through
transient jurisdiction. Each state has the power to hale before its courts
any individual who could be found within its borders, and that once
having acquired jurisdiction over such a person by properly serving him
with process, the State can retain jurisdiction to enter judgment against
him, no matter how fleeting his visit, i.e. even if there is nor general
neither specific jurisdiction. Nevertheless, one ought to notice that
Restatement the Third comments that transient jurisdiction is not
acceptable under international law (§421(2)(a) and that’s why Burnham
should be restricted to interstate defendants and not foreign defendants.
In regard of challenging jurisdiction, foreign defendants have to
distinguish between state and federal cases. In state courts, the defending
party may refuse to make a “general appearance” that implies
acknowledging to the court’s jurisdiction, and instead, only make a
“special appearance” for the purpose of arguing against the court’s will to
sit its jurisdiction. As in federal courts, if there is no “special appearance”,
defendants must turn themselves to other remedies. Rule 12 (b)(2) of the
Federal Rules of Civil Procedure foresees the possibility to file a motion
to dismiss at the beginning of the litigation, to raise the jurisdictional
problem in the answer and moving to dismiss later, or not to appear in
77
Asahi v. Superior Court of California, 480 U.S. 102 (1987).
Adams, op.cit., 120 sq.
79
Op.cit., p. 123.
80
Cf: Burnham v. Superior Court of California, 495 US 604 (1990).
78
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court and attack collaterally the rendered default judgment for lack of
jurisdiction.
324
Jurisdiction in personam
Cases and Materials
INTERNATIONAL SHOE CO. v. WASHINGTON, 326
U.S. 310 (1945)
Decided Dec. 3, 1945.
Appeal from the Supreme Court of the State of Washington. [326 U.S. 310, 311]
Mr. Henry C. Lowenhaupt, of St. Louis Mo., for appellant.
Mr. George W. Wilkins, of Olympia, Wash., for appellees.
Mr. Chief Justice STONE delivered the opinion of the Court.
The questions for decision are (1) whether, within the limitations of the due
process clause of the Fourteenth Amendment, appellant, a Delaware corporation,
has by its activities in the State of Washington rendered itself amenable to
proceedings in the courts of that state to recover unpaid contributions to the state
unemployment compensation fund exacted by state statutes, Washington
Unemployment Compensation Act, Washington Revised Statutes, 9998-103a
through 9998-123a, 1941 Supp., and (2) whether the state can exact those
contributions consistently with the due process clause of the Fourteenth
Amendment.
The statutes in question set up a comprehensive scheme of unemployment
compensation, the costs of which are defrayed by contributions required to be
made by employers to a state unemployment compensation fund. [326 U.S. 310,
312] The contributions are a specified percentage of the wages payable annually
by each employer for his employees' services in the state. The assessment and
collection of the contributions and the fund are administered by respondents.
Section 14(c) of the Act, Wash.Rev.Stat. 1941 Supp., 9998- 114c, authorizes
respondent Commissioner to issue an order and notice of assessment of
delinquent contributions upon prescribed personal service of the notice upon the
employer if found within the state, or, if not so found, by mailing the notice to the
employer by registered mail at his last known address. That section also
authorizes the Commissioner to collect the assessment by distraint if it is not paid
within ten days after service of the notice. By 14(e) and 6(b) the order of
assessment may be administratively reviewed by an appeal tribunal within the
office of unemployment upon petition of the employer, and this determination is
by 6(i) made subject to judicial review on questions of law by the state Superior
Court, with further right of appeal in the state Supreme Court as in other civil
cases.
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In this case notice of assessment for the years in question was personally served
upon a sales solicitor employed by appellant in the State of Washington, and a
copy of the notice was mailed by registered mail to appellant at its address in St.
Louis, Missouri. Appellant appeared specially before the office of unemployment
and moved to set aside the order and notice of assessment on the ground that the
service upon appellant's salesman was not proper service upon appellant; that
appellant was not a corporation of the State of Washington and was not doing
business within the state; that it had no agent within the state upon whom service
could be made; and that appellant is not an employer and does not furnish
employment within the meaning of the statute.
The motion was heard on evidence and a stipulation of facts by the appeal
tribunal which denied the motion [326 U.S. 310, 313] and ruled that respondent
Commissioner was entitled to recover the unpaid contributions. That action was
affirmed by the Commissioner; both the Superior Court and the Supreme Court
affirmed. 154 P.2d 801. Appellant in each of these courts assailed the statute as
applied, as a violation of the due process clause of the Fourteenth Amendment,
and as imposing a constitutionally prohibited burden on interstate commerce. The
cause comes here on appeal under 237(a) of the Judicial Code, 28 U.S.C. 344(a),
28 U.S.C.A. 344(a), appellant assigning as error that the challenged statutes as
applied infringe the due process clause of the Fourteenth Amendment and the
commerce clause.
The facts as found by the appeal tribunal and accepted by the state Superior Court
and Supreme Court, are not in dispute. Appellant is a Delaware corporation,
having its principal place of business in St. Louis, Missouri, and is engaged in the
manufacture and sale of shoes and other footwear. It maintains places of business
in several states, other than Washington, at which its manufacturing is carried on
and from which its merchandise is distributed interstate through several sales
units or branches located outside the State of Washington.
Appellant has no office in Washington and makes no contracts either for sale or
purchase of merchandise there. It maintains no stock of merchandise in that state
and makes there no deliveries of goods in intrastate commerce. During the years
from 1937 to 1940, now in question, appellant employed eleven to thirteen
salesmen under direct supervision and control of sales managers located in St.
Louis. These salesmen resided in Washington; their principal activities were
confined to that state; and they were compensated by commissions based upon
the amount of their sales. The commissions for each year totaled more than
$31,000. Appellant supplies its salesmen with a line of samples, each consisting
of one shoe of a pair, which [326 U.S. 310, 314] they display to prospective
purchasers. On occasion they rent permanent sample rooms, for exhibiting
samples, in business buildings, or rent rooms in hotels or business buildings
temporarily for that purpose. The cost of such rentals is reimbursed by appellant.
The authority of the salesmen is limited to exhibiting their samples and soliciting
orders from prospective buyers, at prices and on terms fixed by appellant. The
salesmen transmit the orders to appellant's office in St. Louis for acceptance or
326
Jurisdiction in personam
rejection, and when accepted the merchandise for filling the orders is shipped
f.o.b. from points outside Washington to the purchasers within the state. All the
merchandise shipped into Washington is invoiced at the place of shipment from
which collections are made. No salesman has authority to enter into contracts or
to make collections.
The Supreme Court of Washington was of opinion that the regular and systematic
solicitation of orders in the state by appellant's salesmen, resulting in a
continuous flow of appellant's product into the state, was sufficient to constitute
doing business in the state so as to make appellant amenable to suit in its courts.
But it was also of opinion that there were sufficient additional activities shown to
bring the case within the rule frequently stated, that solicitation within a state by
the agents of a foreign corporation plus some additional activities there are
sufficient to render the corporation amenable to suit brought in the courts of the
state to enforce an obligation arising out of its activities there. International
Harvester Co. v. Kentucky, 234 U.S. 579, 587 , 34 S.Ct. 944, 946; People's
Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 87 , 38 S.Ct. 233, 235,
Ann.Cas.1918C, 537; Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134
F.2d 511, 516, 146 A.L.R. 926. The court found such additional activities in the
salesmen's display of samples sometimes in permanent display rooms, and the
salesmen's residence within the state, continued over a period of years, all
resulting in a [326 U.S. 310, 315] substantial volume of merchandise regularly
shipped by appellant to purchasers within the state. The court also held that the
statute as applied did not invade the constitutional power of Congress to regulate
interstate commerce and did not impose a prohibited burden on such commerce.
Appellant's argument, renewed here, that the statute imposes an unconstitutional
burden on interstate commerce need not detain us. For 53 Stat. 1391, 26 U.S.C.
1606(a), 26 U.S.C.A. Int.Rev.Code, 1606(a), provides that 'No person required
under a State law to make payments to an unemployment fund shall be relieved
from compliance therewith on the ground that he is engaged in interstate or
foreign commerce, or that the State law does not distinguish between employees
engaged in interstate or foreign commerce and those engaged in intrastate
commerce.' It is no longer debatable that Congress, in the exercise of the
commerce power, may authorize the states, in specified ways, to regulate
interstate commerce or impose burdens upon it. Kentucky Whip & Collar Co. v.
Illinois Central R. Co., 299 U.S. 334 , 57 S.Ct. 277; Perkins v. Pennsylvania, 314
U.S. 586 , 62 S.Ct. 484; Standard Dredging Corp. v. Murphy, 319 U.S. 306, 308 ,
63 S.Ct. 1067, 1068; Hooven & Allison v. Evatt, 324 U.S. 652, 679 , 65 S.Ct.
870, 883; Southern Pacific Co. v. Arizona, 325 U.S. 761, 769 , 65 S.Ct. 1515,
1520
Appellant also insists that its activities within the state were not sufficient to
manifest its 'presence' there and that in its absence the state courts were without
jurisdiction, that consequently it was a denial of due process for the state to
subject appellant to suit. It refers to those cases in which it was said that the mere
solicitation of orders for the purchase of goods within a state, to be accepted
without the state and filled by shipment of the purchased goods interstate, does
327
Lectures on the US Legal System
not render the corporation seller amenable to suit within the state. See Green v.
Chicago, Burlington & Quincy R. Co., 205 U.S. 530, 533 , 27 S.Ct. 595, 596;
International Harvester Co. v. Kentucky, supra, 234 U.S. 586, 587 , 34 S.Ct. 946;
Philadelphia [326 U.S. 310, 316] & Reading R. Co. v. McKibbin, 243 U.S. 264,
268 , 37 S.Ct. 280; People's Tobacco Co. v. American Tobacco Co., supra, 246
U.S. 87 , 38 S.Ct. 235, Ann.Cas.1918C, 537. And appellant further argues that
since it was not present within the state, it is a denial of due process to subject it
to taxation or other money exaction. It thus denies the power of the state to lay
the tax or to subject appellant to a suit for its collection.
Historically the jurisdiction of courts to render judgment in personam is grounded
on their de facto power over the defendant's person. Hence his presence within
the territorial jurisdiction of court was prerequisite to its rendition of a judgment
personally binding him. Pennoyer v. Neff, 95 U.S. 714 , 733. But now that the
capias ad respondendum has given way to personal service of summons or other
form of notice, due process requires only that in order to subject a defendant to a
judgment in personam, if he be not present within the territory of the forum, he
have certain minimum contacts with it such that the maintenance of the suit does
not offend 'traditional notions of fair play and substantial justice.' Milliken v.
Meyer, 311 U.S. 457, 463 , 61 S.Ct. 339, 343, 132 A.L.R. 1357. See Holmes, J.,
in McDonald v. Mabee, 243 U.S. 90, 91 , 37 S.Ct. 343, L.R.A.1917F, 458.
Compare Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316 , 319 S., 63 S.Ct.
602, 604, 606, 145 A.L.R. 1113. See Blackmer v. United States, 284 U.S. 421 ,
52 S.Ct. 252; Hess v. Pawloski, 274 U.S. 352 , 47 S.Ct. 632; Young v. Masci,
289 U.S. 253 , 53 S.Ct. 599, 88 A.L.R. 170.
Since the corporate personality is a fiction, although a fiction intended to be acted
upon as though it were a fact, Klein v. Board of Tax Supervisors, 282 U.S. 19, 24
, 51 S.Ct. 15, 16, 73 A.L.R. 679, it is clear that unlike an individual its 'presence'
without, as well as within, the state of its origin can be manifested only by
activities carried on in its behalf by those who are authorized to act for it. To say
that the corporation is so far 'present' there as to satisfy due process requirements,
for purposes of taxation or the maintenance of suits against it in the courts of the
state, is to beg the question to be decided. For the terms 'present' or 'presence' are
[326 U.S. 310, 317]
used merely to symbolize those activities of the
corporation's agent within the state which courts will deem to be sufficient to
satisfy the demands of due process. L. Hand, J., in Hutchinson v. Chase &
Gilbert, 2 Cir., 45 F.2d 139, 141. Those demands may be met by such contacts of
the corporation with the state of the forum as make it reasonable, in the context of
our federal system of government, to require the corporation to defend the
particular suit which is brought there. An 'estimate of the inconveniences' which
would result to the corporation from a trial away from its 'home' or principal
place of business is relevant in this connection. Hutchinson v. Chase & Gilbert,
supra, 45 F.2d 141.
'Presence' in the state in this sense has never been doubted when the activities of
the corporation there have not only been continuous and systematic, but also give
rise to the liabilities sued on, even though no consent to be sued or authorization
328
Jurisdiction in personam
to an agent to accept service of process has been given. St. Clair v. Cox, 106 U.S.
350, 355 , 1 S.Ct. 354, 359; Connecticut Mutual Life Ins. Co. v. Spratley, 172
U.S. 602, 610 , 611 S., 19 S.Ct. 308, 311, 312; Pennsylvania Lumbermen's Mut.
Fire Ins. Co. v. Meyer, 197 U.S. 407, 414 , 415 S., 25 S.Ct. 483, 484, 485;
Commercial Mutual Accident Co. v. Davis, 213 U.S. 245, 255 , 256 S., 29 S.Ct.
445, 448; International Harvester Co. v. Kentucky, supra; cf. St. Louis S.W.R.
Co. v. Alexander, 227 U.S. 218 , 33 S.Ct. 245, Ann.Cas.1915B, 77. Conversely it
has been generally recognized that the casual presence of the corporate agent or
even his conduct of single or isolated items of activities in a state in the
corporation's behalf are not enough to subject it to suit on causes of action
unconnected with the activities there. St. Clair v. Cox, supra, 106 U.S. 359, 360 ,
1 S.Ct. 362, 363; Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8, 21 , 27
S.Ct. 236, 240; Frene v. Louisville Cement Co., supra, 77 U.S.App.D.C. 133, 134
F.2d 515, 146 A.L.R. 926, and cases cited. To require the corporation in such
circumstances to defend the suit away from its home or other jurisdiction where it
carries on more substantial activities has been thought to lay too great and
unreasonable a burden on the corporation to comport with due process. [326 U.S.
310, 318] While it has been held in cases on which appellant relies that
continuous activity of some sorts within a state is not enough to support the
demand that the corporation be amenable to suits unrelated to that activity, Old
Wayne Mut. Life Ass'n v. McDonough, supra; Green v. Chicago, Burlington &
Quincy R. Co., supra; Simon v. Southern R. Co., 236 U.S. 115 , 35 S.Ct. 255;
People's Tobacco Co. v. American Tobacco Co., supra; cf. Davis v. Farmers' Cooperative Equity Co., 262 U.S. 312, 317 , 43 S.Ct. 556, 558, there have been
instances in which the continuous corporate operations within a state were
thought so substantial and of such a nature as to justify suit against it on causes of
action arising from dealings entirely distinct from those activities. See Missouri,
K. & T.R. Co. v. Reynolds, 255 U.S. 565 , 41 S.Ct. 446; Tauza v. Susquehanna
Coal Co., 220 N.Y. 259, 115 N.E. 915; cf. St. Louis S.W.R. Co. v. Alexander,
supra.
Finally, although the commission of some single or occasional acts of the
corporate agent in a state sufficient to impose an obligation or liability on the
corporation has not been thought to confer upon the state authority to enforce it,
Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516 , 43 S.Ct. 170, other
such acts, because of their nature and quality and the circumstances of their
commission, may be deemed sufficient to render the corporation liable to suit. Cf.
Kane v. New Jersey, 242 U.S. 160 , 37 S.Ct. 30; Hess v. Pawloski, supra; Young
v. Masci, supra. True, some of the decisions holding the corporation amenable to
suit have been supported by resort to the legal fiction that it has given its consent
to service and suit, consent being implied from its presence in the state through
the acts of its authorized agents. Lafayette Insurance Co. v. French, 18 How. 404,
407; St. Clair v. Cox, supra, 106 U.S. 356 , 1 S.Ct. 359; Commercial Mutual
Accident Co. v. Davis, supra, 213 U.S. 254 , 29 S.Ct. 447; State of Washington v.
Superior Court, 289 U.S. 361, 364 , 365 S., 53 S.Ct. 624, 626, 627, 89 A.L.R.
653. But more realistically it may be said that those authorized acts were of such
a nature as to justify the fiction. Smolik v. Philadelphia & [326 U.S. 310, 319]
329
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R.C. & I. Co., D.C., 222 F. 148, 151. Henderson, The Position of Foreign
Corporations in American Constitutional Law, 94, 95.
It is evident that the criteria by which we mark the boundary line between those
activities which justify the subjection of a corporation to suit, and those which do
not, cannot be simply mechanical or quantitative. The test is not merely, as has
sometimes been suggested, whether the activity, which the corporation has seen
fit to procure through its agents in another state, is a little more or a little less. St.
Louis S.W.R. Co. v. Alexander, supra, 227 U.S. 228 , 33 S.Ct. 248, Ann.Cas.
1915B, 77; International Harvestor Co. v. Kentucky, supra, 234 U.S. 587 , 34
S.Ct. 946. Whether due process is satisfied must depend rather upon the quality
and nature of the activity in relation to the fair and orderly administration of the
laws which it was the purpose of the due process clause to insure. That clause
does not contemplate that a state may make binding a judgment in personam
against an individual or corporate defendant with which the state has no contacts,
ties, or relations. Cf. Pennoyer v. Neff, supra; Minnesota Commercial Men's
Ass'n v. Benn, 261 U.S. 140 , 43 S.Ct. 293.
But to the extent that a corporation exercises the privilege of conducting activities
within a state, it enjoys the benefits and protection of the laws of that state. The
exercise of that privilege may give rise to obligations; and, so far as those
obligations arise out of or are connected with the activities within the state, a
procedure which requires the corporation to respond to a suit brought to enforce
them can, in most instances, hardly be said to be undue. Compare International
Harvester Co. v. Kentucky, supra, with Green v. Chicago, Burlington & Quincy
R. Co., supra, and People's Tobacco Co. v. American Tobacco Co., supra.
Compare Connecticut Mutual Life Ins. Co. v. Spratley, supra, 172 U.S. 619, 620 ,
19 S.Ct. 314, 315, and Commercial Mutual Accident Co. v. Davis, supra, with
Old Wayne Mut. Life Ass'n v. McDonough, supra. See 29 Columbia Law
Review, 187-195. [326 U.S. 310, 320] Applying these standards, the activities
carried on in behalf of appellant in the State of Washington were neither irregular
nor casual. They were systematic and continuous throughout the years in
question. They resulted in a large volume of interstate business, in the course of
which appellant received the benefits and protection of the laws of the state,
including the right to resort to the courts for the enforcement of its rights. The
obligation which is here sued upon arose out of those very activities. It is evident
that these operations establish sufficient contacts or ties with the state of the
forum to make it reasonable and just according to our traditional conception of
fair play and substantial justice to permit the state to enforce the obligations
which appellant has incurred there. Hence we cannot say that the maintenance of
the present suit in the State of Washington involves an unreasonable or undue
procedure.
We are likewise unable to conclude that the service of the process within the state
upon an agent whose activities establish appellant's 'presence' there was not
sufficient notice of the suit, or that the suit was so unrelated to those activities as
to make the agent an inappropriate vehicle for communicating the notice. It is
enough that appellant has established such contacts with the state that the
330
Jurisdiction in personam
particular form of substituted service adopted there gives reasonable assurance
that the notice will be actual. Connecticut Mutual Life Ins. Co. v. Spratley, supra,
172 U.S. 618, 619 , 19 S.Ct. 314, 315; Board of Trade v. Hammond Elevator Co.,
198 U.S. 424, 437 , 438 S., 25 S.Ct. 740, 743, 744; Commercial Mutual Accident
Co. v. Davis, supra, 213 U.S. 254, 255 , 29 S.Ct. 447, 448. Cf. Riverside & Dan
River Cotton Mills v. Menefee, 237 U.S. 189, 194 , 195 S., 35 S.Ct. 579, 580,
581; see Knowles v. Gaslight & Coke Co., 19 Wall. 58, 61; McDonald v. Mabee,
supra; Milliken v. Meyer, supra. Nor can we say that the mailing of the notice of
suit to appellant by registered mail at its home office was not reasonably
calculated to apprise appellant of the suit. Compare Hess v. Pawloski, supra, with
McDonald v. Mabee, supra, 243 U.S. [326 U.S. 310, 321] 92, 37 S.Ct. 344,
L.R.A.1917F, 458, and Wuchter v. Pizzutti, 276 U.S. 13, 19 , 24 S., 48 S.Ct. 259,
260, 262, 57 A.L.R. 1230; cf. Bequet v. MacCarthy, 2 B. & Ad. 951;
Maubourquet v. Wyse, 1 Ir.Rep.C.L. 471. See State of Washington v. Superior
Court, supra, 289 U.S. 365 , 53 S. Ct. 626, 89 A.L.R. 653.
Only a word need be said of appellant's liability for the demanded contributions
of the state unemployment fund. The Supreme Court of Washington, construing
and applying the statute, has held that it imposes a tax on the privilege of
employing appellant's salesmen within the state measured by a percentage of the
wages, here the commissions payable to the salesmen. This construction we
accept for purposes of determining the constitutional validity of the statute. The
right to employ labor has been deemed an appropriate subject of taxation in this
country and England, both before and since the adoption of the Constitution.
Steward Machine Co. v. Davis, 301 U.S. 548 , 579 et seq., 57 S.Ct. 883, 887 et
seq., 109 A.L.R. 1293. And such a tax imposed upon the employer for
unemployment benefits is within the constitutional power of the states.
Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 , 508 et seq., 57 S.Ct.
868, 871 et seq., 109 A.L.R. 1327.
Appellant having rendered itself amenable to suit upon obligations arising out of
the activities of its salesmen in Washington, the state may maintain the present
suit in personam to collect the tax laid upon the exercise of the privilege of
employing appellant's salesmen within the state. For Washington has made one of
those activities, which taken together establish appellant's 'presence' there for
purposes of suit, the taxable event by which the state brings appellant within the
reach of its taxing power. The state thus has constitutional power to lay the tax
and to subject appellant to a suit to recover it. The activities which establish its
'presence' subject it alike to taxation by the state and to suit to recover the tax.
Equitable Life Assur. Society v. Pennsylvania, 238 U.S. 143, 146 , 35 S.Ct. 829,
830; cf. International Harvester Co. v. Wisconsin Department of Taxation, 322
U.S. 435 , 442 et seq., 64 S.Ct. 1060, 1064 et seq.; Hoopeston Canning Co. v.
Cullen, [326 U.S. 310, 322] supra, 318 U.S. 316 -319, 63 S.Ct. 604-606, 145
A.L.R. 113; see General Trading Co. v. State Tax Com., 322 U.S. 335, 349 , 64
S.Ct. 1028, 1030, 1319.
AFFIRMED.
331
Lectures on the US Legal System
WORLD-WIDE VOLKSWAGEN CORP. v. WOODSON,
444 U.S. 286 (1980)
Argued October 3, 1979.
Decided January 21, 1980.
A products-liability action was instituted in an Oklahoma state court by
respondents husband and wife to recover for personal injuries sustained in
Oklahoma in an accident involving an automobile that had been purchased by
them in New York while they were New York residents and that was being
driven through Oklahoma at the time of the accident. The defendants included the
automobile retailer and its wholesaler (petitioners), New York corporations that
did no business in Oklahoma. Petitioners entered special appearances, claiming
that Oklahoma's exercise of jurisdiction over them would offend limitations on
the State's jurisdiction imposed by the Due Process Clause of the Fourteenth
Amendment. The trial court rejected petitioners' claims, and they then sought, but
were denied, a writ of prohibition in the Oklahoma Supreme Court to restrain
respondent trial judge from exercising in personam jurisdiction over them.
Held:
Consistently with the Due Process Clause, the Oklahoma trial court may not
exercise in personam jurisdiction over petitioners. Pp. 291-299.
(a) A state court may exercise personal jurisdiction over a nonresident defendant
only so long as there exist "minimum contacts" between the defendant and the
forum State. International Shoe Co. v. Washington, 326 U.S. 310 . The
defendant's contacts with the forum State must be such that maintenance of the
suit does not offend traditional notions of fair play and substantial justice, id., at
316, and the relationship between the defendant and the forum must be such that
it is "reasonable . . . to require the corporation to defend the particular suit which
is brought there," id., at 317. The Due Process Clause "does not contemplate that
a state may make binding a judgment in personam against an individual or
corporate defendant with which the state has no contacts, ties, or relations." Id., at
319. Pp. 291-294.
(b) Here, there is a total absence in the record of those affiliating circumstances
that are a necessary predicate to any exercise of state-court jurisdiction.
Petitioners carry on no activity whatsoever in Oklahoma; they close no sales and
perform no services there, avail [444 U.S. 286, 287] themselves of none of the
benefits of Oklahoma law, and solicit no business there either through
salespersons or through advertising reasonably calculated to reach that State. Nor
does the record show that they regularly sell cars to Oklahoma residents or that
they indirectly, through others, serve or seek to serve the Oklahoma market.
332
Jurisdiction in personam
Although it is foreseeable that automobiles sold by petitioners would travel to
Oklahoma and that the automobile here might cause injury in Oklahoma,
"foreseeability" alone is not a sufficient benchmark for personal jurisdiction
under the Due Process Clause. The foreseeability that is critical to due process
analysis is not the mere likelihood that a product will find its way into the forum
State, but rather is that the defendant's conduct and connection with the forum are
such that he should reasonably anticipate being haled into court there. Nor can
jurisdiction be supported on the theory that petitioners earn substantial revenue
from goods used in Oklahoma. Pp. 295-299.
585 P.2d 351, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and
STEWART, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN,
J., filed a dissenting opinion, post, p. 299. MARSHALL, J., filed a dissenting
opinion, in which BLACKMUN, J., joined, post, p. 313 BLACKMUN, J., filed a
dissenting opinion, post, p. 317.
Herbert Rubin argued the cause for petitioners. With him on the briefs were Dan
A. Rogers, Bernard J. Wald, and Ian Ceresney.
Jefferson G. Greer argued the cause for respondents. With him on the brief was
Charles A. Whitebook.
MR. JUSTICE WHITE delivered the opinion of the Court.
The issue before us is whether, consistently with the Due Process Clause of the
Fourteenth Amendment, an Oklahoma court may exercise in personam
jurisdiction over a nonresident automobile retailer and its wholesale distributor in
a products-liability action, when the defendants' only connection with Oklahoma
is the fact that an automobile sold in New York to New York residents became
involved in an accident in Oklahoma. [444 U.S. 286, 288]
I
Respondents Harry and Kay Robinson purchased a new Audi automobile from
petitioner Seaway Volkswagen, Inc. (Seaway), in Massena, N. Y., in 1976. The
following year the Robinson family, who resided in New York, left that State for
a new home in Arizona. As they passed through the State of Oklahoma, another
car struck their Audi in the rear, causing a fire which severely burned Kay
Robinson and her two children.
The Robinsons subsequently brought a products-liability action in the District
Court for Creek County, Okla., claiming that their injuries resulted from defective
design and placement of the Audi's gas tank and fuel system. They joined as
defendants the automobile's manufacturer, Audi NSU Auto Union
Aktiengesellschaft (Audi); its importer, Volkswagen of America, Inc.
(Volkswagen); its regional distributor, petitioner World-Wide Volkswagen Corp.
(World-Wide); and its retail dealer, petitioner Seaway. Seaway and World-Wide
entered special appearances, claiming that Oklahoma's exercise of jurisdiction
333
Lectures on the US Legal System
over them would offend the limitations on the State's jurisdiction imposed by the
Due Process Clause of the Fourteenth Amendment.
The facts presented to the District Court showed that World-Wide is incorporated
and has its business office in New [444 U.S. 286, 289] York. It distributes
vehicles, parts, and accessories, under contract with Volkswagen, to retail dealers
in New York, New Jersey, and Connecticut. Seaway, one of these retail dealers,
is incorporated and has its place of business in New York. Insofar as the record
reveals, Seaway and World-Wide are fully independent corporations whose
relations with each other and with Volkswagen and Audi are contractual only.
Respondents adduced no evidence that either World-Wide or Seaway does any
business in Oklahoma, ships or sells any products to or in that State, has an agent
to receive process there, or purchases advertisements in any media calculated to
reach Oklahoma. In fact, as respondents' counsel conceded at oral argument, Tr.
of Oral Arg. 32, there was no showing that any automobile sold by World-Wide
or Seaway has ever entered Oklahoma with the single exception of the vehicle
involved in the present case.
Despite the apparent paucity of contacts between petitioners and Oklahoma, the
District Court rejected their constitutional claim and reaffirmed that ruling in
denying petitioners' motion for reconsideration. Petitioners then sought a writ of
prohibition in the Supreme Court of Oklahoma to restrain the District Judge,
respondent Charles S. Woodson, from exercising in personam jurisdiction over
them. They renewed their contention that, because they had no "minimal
contacts," App. 32, with the State of Oklahoma, the actions of the District Judge
were in violation of their rights under the Due Process Clause.
The Supreme Court of Oklahoma denied the writ, 585 P.2d 351 (1978), holding
that personal jurisdiction over petitioners was authorized by Oklahoma's "longarm" statute, [444 U.S. 286, 290] Okla. Stat., Tit. 12, 1701.03 (a) (4) (1971).
Although the court noted that the proper approach was to test jurisdiction against
both statutory and constitutional standards, its analysis did not distinguish these
questions, probably because 1701.03 (a) (4) has been interpreted as conferring
jurisdiction to the limits permitted by the United States Constitution. The court's
rationale was contained in the following paragraph, 585 P.2d, at 354:
"In the case before us, the product being sold and distributed by the petitioners is
by its very design and purpose so mobile that petitioners can foresee its possible
use in Oklahoma. This is especially true of the distributor, who has the exclusive
right to distribute such automobile in New York, New Jersey and Connecticut.
The evidence presented below demonstrated that goods sold and distributed by
the petitioners were used in the State of Oklahoma, and under the facts we believe
it reasonable to infer, given the retail value of the automobile, that the petitioners
derive substantial income from automobiles which from time to time are used in
the State of Oklahoma. This being the case, we hold that under the facts
presented, the trial court was justified in concluding [444 U.S. 286, 291] that the
petitioners derive substantial revenue from goods used or consumed in this State."
334
Jurisdiction in personam
We granted certiorari, 440 U.S. 907 (1979), to consider an important
constitutional question with respect to state-court jurisdiction and to resolve a
conflict between the Supreme Court of Oklahoma and the highest courts of at
least four other States. We reverse.
II
The Due Process Clause of the Fourteenth Amendment limits the power of a state
court to render a valid personal judgment against a nonresident defendant. Kulko
v. California Superior Court, 436 U.S. 84, 91 (1978). A judgment rendered in
violation of due process is void in the rendering State and is not entitled to full
faith and credit elsewhere. Pennoyer v. Neff, 95 U.S. 714, 732 -733 (1878). Due
process requires that the defendant be given adequate notice of the suit, Mullane
v. Central Hanover Trust Co., 339 U.S. 306, 313 -314 (1950), and be subject to
the personal jurisdiction of the court, International Shoe Co. v. Washington, 326
U.S. 310 (1945). In the present case, it is not contended that notice was
inadequate; the only question is whether these particular petitioners were subject
to the jurisdiction of the Oklahoma courts.
As has long been settled, and as we reaffirm today, a state court may exercise
personal jurisdiction over a nonresident defendant only so long as there exist
"minimum contacts" between the defendant and the forum State. International
Shoe Co. v. Washington, supra, at 316. The concept of minimum contacts, in
turn, can be seen to perform two related, but [444 U.S. 286, 292]
distinguishable, functions. It protects the defendant against the burdens of
litigating in a distant or inconvenient forum. And it acts to ensure that the States,
through their courts, do not reach out beyond the limits imposed on them by their
status as coequal sovereigns in a federal system.
The protection against inconvenient litigation is typically described in terms of
"reasonableness" or "fairness." We have said that the defendant's contacts with
the forum State must be such that maintenance of the suit "does not offend
`traditional notions of fair play and substantial justice.'" International Shoe Co. v.
Washington, supra, at 316, quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940).
The relationship between the defendant and the forum must be such that it is
"reasonable . . . to require the corporation to defend the particular suit which is
brought there." 326 U.S., at 317 . Implicit in this emphasis on reasonableness is
the understanding that the burden on the defendant, while always a primary
concern, will in an appropriate case be considered in light of other relevant
factors, including the forum State's interest in adjudicating the dispute, see
McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957); the plaintiff's
interest in obtaining convenient and effective relief, see Kulko v. California
Superior Court, supra, at 92, at least when that interest is not adequately protected
by the plaintiff's power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186,
211 , n. 37 (1977); the interstate judicial system's interest in obtaining the most
efficient resolution of controversies; and the shared interest of the several States
335
Lectures on the US Legal System
in furthering fundamental substantive social policies, see Kulko v. California
Superior Court, supra, at 93, 98.
The limits imposed on state jurisdiction by the Due Process Clause, in its role as a
guarantor against inconvenient litigation, have been substantially relaxed over the
years. As we noted in McGee v. International Life Ins. Co., supra, at 222-223
[444 U.S. 286, 293]
this trend is largely attributable to a fundamental
transformation in the American economy:
"Today many commercial transactions touch two or more States and may involve
parties separated by the full continent. With this increasing nationalization of
commerce has come a great increase in the amount of business conducted by mail
across state lines. At the same time modern transportation and communication
have made it much less burdensome for a party sued to defend himself in a State
where he engages in economic activity."
The historical developments noted in McGee, of course, have only accelerated in
the generation since that case was decided.
Nevertheless, we have never accepted the proposition that state lines are
irrelevant for jurisdictional purposes, nor could we, and remain faithful to the
principles of interstate federalism embodied in the Constitution. The economic
interdependence of the States was foreseen and desired by the Framers. In the
Commerce Clause, they provided that the Nation was to be a common market, a
"free trade unit" in which the States are debarred from acting as separable
economic entities. H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 538
(1949). But the Framers also intended that the States retain many essential
attributes of sovereignty, including, in particular, the sovereign power to try
causes in their courts. The sovereignty of each State, in turn, implied a limitation
on the sovereignty of all of its sister States - a limitation express or implicit in
both the original scheme of the Constitution and the Fourteenth Amendment.
Hence, even while abandoning the shibboleth that "[t]he authority of every
tribunal is necessarily restricted by the territorial limits of the State in which it is
established," Pennoyer v. Neff, supra, at 720, we emphasized that the
reasonableness of asserting jurisdiction over the defendant must be assessed "in
the context of our federal system of government," [444 U.S. 286, 294]
International Shoe Co. v. Washington, 326 U.S., at 317 , and stressed that the
Due Process Clause ensures not only fairness, but also the "orderly administration
of the laws," id., at 319. As we noted in Hanson v. Denckla, 357 U.S. 235, 250 251 (1958):
"As technological progress has increased the flow of commerce between the
States, the need for jurisdiction over nonresidents has undergone a similar
increase. At the same time, progress in communications and transportation has
made the defense of a suit in a foreign tribunal less burdensome. In response to
these changes, the requirements for personal jurisdiction over nonresidents have
evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714 , to the flexible
standard of International Shoe Co. v. Washington, 326 U.S. 310 . But it is a
336
Jurisdiction in personam
mistake to assume that this trend heralds the eventual demise of all restrictions on
the personal jurisdiction of state courts. [Citation omitted.] Those restrictions are
more than a guarantee of immunity from inconvenient or distant litigation. They
are a consequence of territorial limitations on the power of the respective States."
Thus, the Due Process Clause "does not contemplate that a state may make
binding a judgment in personam against an individual or corporate defendant
with which the state has no contacts, ties, or relations." International Shoe Co. v.
Washington, supra, at 319. Even if the defendant would suffer minimal or no
inconvenience from being forced to litigate before the tribunals of another State;
even if the forum State has a strong interest in applying its law to the controversy;
even if the forum State is the most convenient location for litigation, the Due
Process Clause, acting as an instrument of interstate federalism, may sometimes
act to divest the State of its power to render a valid judgment. Hanson v. Denckla,
supra, at 251, 254. [444 U.S. 286, 295]
III
Applying these principles to the case at hand, we find in the record before us a
total absence of those affiliating circumstances that are a necessary predicate to
any exercise of state-court jurisdiction. Petitioners carry on no activity
whatsoever in Oklahoma. They close no sales and perform no services there.
They avail themselves of none of the privileges and benefits of Oklahoma law.
They solicit no business there either through salespersons or through advertising
reasonably calculated to reach the State. Nor does the record show that they
regularly sell cars at wholesale or retail to Oklahoma customers or residents or
that they indirectly, through others, serve or seek to serve the Oklahoma market.
In short, respondents seek to base jurisdiction on one, isolated occurrence and
whatever inferences can be drawn therefrom: the fortuitous circumstance that a
single Audi automobile, sold in New York to New York residents, happened to
suffer an accident while passing through Oklahoma.
It is argued, however, that because an automobile is mobile by its very design and
purpose it was "foreseeable" that the Robinsons' Audi would cause injury in
Oklahoma. Yet "foreseeability" alone has never been a sufficient benchmark for
personal jurisdiction under the Due Process Clause. In Hanson v. Denckla, supra,
it was no doubt foreseeable that the settlor of a Delaware trust would
subsequently move to Florida and seek to exercise a power of appointment there;
yet we held that Florida courts could not constitutionally [444 U.S. 286, 296]
exercise jurisdiction over a Delaware trustee that had no other contacts with the
forum State. In Kulko v. California Superior Court, 436 U.S. 84 (1978), it was
surely "foreseeable" that a divorced wife would move to California from New
York, the domicile of the marriage, and that a minor daughter would live with the
mother. Yet we held that California could not exercise jurisdiction in a childsupport action over the former husband who had remained in New York.
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If foreseeability were the criterion, a local California tire retailer could be forced
to defend in Pennsylvania when a blowout occurs there, see Erlanger Mills, Inc.
v. Cohoes Fibre Mills, Inc., 239 F.2d 502, 507 (CA4 1956); a Wisconsin seller of
a defective automobile jack could be haled before a distant court for damage
caused in New Jersey, Reilly v. Phil Tolkan Pontiac, Inc., 372 F. Supp. 1205 (NJ
1974); or a Florida soft-drink concessionaire could be summoned to Alaska to
account for injuries happening there, see Uppgren v. Executive Aviation
Services, Inc., 304 F. Supp. 165, 170-171 (Minn. 1969). Every seller of chattels
would in effect appoint the chattel his agent for service of process. His
amenability to suit would travel with the chattel. We recently abandoned the
outworn rule of Harris v. Balk, 198 U.S. 215 (1905), that the interest of a creditor
in a debt could be extinguished or otherwise affected by any State having
transitory jurisdiction over the debtor. Shaffer v. Heitner, 433 U.S. 186 (1977).
Having interred the mechanical rule that a creditor's amenability to a quasi in rem
action travels with his debtor, we are unwilling to endorse an analogous principle
in the present case. [444 U.S. 286, 297]
This is not to say, of course, that foreseeability is wholly irrelevant. But the
foreseeability that is critical to due process analysis is not the mere likelihood that
a product will find its way into the forum State. Rather, it is that the defendant's
conduct and connection with the forum State are such that he should reasonably
anticipate being haled into court there. See Kulko v. California Superior Court,
supra, at 97-98; Shaffer v. Heitner, 433 U.S., at 216 ; and see id., at 217-219
(STEVENS, J., concurring in judgment). The Due Process Clause, by ensuring
the "orderly administration of the laws," International Shoe Co. v. Washington,
326 U.S., at 319 , gives a degree of predictability to the legal system that allows
potential defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them liable to suit.
When a corporation "purposefully avails itself of the privilege of conducting
activities within the forum State," Hanson v. Denckla, 357 U.S., at 253 , it has
clear notice that it is subject to suit there, and can act to alleviate the risk of
burdensome litigation by procuring insurance, passing the expected costs on to
customers, or, if the risks are too great, severing its connection with the State.
Hence if the sale of a product of a manufacturer or distributor such as Audi or
Volkswagen is not simply an isolated occurrence, but arises from the efforts of
the manufacturer or distributor to serve, directly or indirectly, the market for its
product in other States, it is not unreasonable to subject it to suit in one of those
States if its allegedly defective merchandise has there been the source of injury to
its owner or to others. The forum State does not [444 U.S. 286, 298] exceed its
powers under the Due Process Clause if it asserts personal jurisdiction over a
corporation that delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum State. Cf.
Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N. E.
2d 761 (1961).
But there is no such or similar basis for Oklahoma jurisdiction over World-Wide
or Seaway in this case. Seaway's sales are made in Massena, N. Y. World-Wide's
338
Jurisdiction in personam
market, although substantially larger, is limited to dealers in New York, New
Jersey, and Connecticut. There is no evidence of record that any automobiles
distributed by World-Wide are sold to retail customers outside this tristate area. It
is foreseeable that the purchasers of automobiles sold by World-Wide and
Seaway may take them to Oklahoma. But the mere "unilateral activity of those
who claim some relationship with a nonresident defendant cannot satisfy the
requirement of contact with the forum State." Hanson v. Denckla, supra, at 253.
In a variant on the previous argument, it is contended that jurisdiction can be
supported by the fact that petitioners earn substantial revenue from goods used in
Oklahoma. The Oklahoma Supreme Court so found, 585 P.2d, at 354-355,
drawing the inference that because one automobile sold by petitioners had been
used in Oklahoma, others might have been used there also. While this inference
seems less than compelling on the facts of the instant case, we need not question
the court's factual findings in order to reject its reasoning.
This argument seems to make the point that the purchase of automobiles in New
York, from which the petitioners earn substantial revenue, would not occur but
for the fact that the automobiles are capable of use in distant States like
Oklahoma. Respondents observe that the very purpose of an automobile is to
travel, and that travel of automobiles sold by petitioners is facilitated by an
extensive chain of Volkswagen service centers throughout the country, including
some in Oklahoma. [444 U.S. 286, 299] However, financial benefits accruing to
the defendant from a collateral relation to the forum State will not support
jurisdiction if they do not stem from a constitutionally cognizable contact with
that State. See Kulko v. California Superior Court, 436 U.S., at 94 -95. In our
view, whatever marginal revenues petitioners may receive by virtue of the fact
that their products are capable of use in Oklahoma is far too attenuated a contact
to justify that State's exercise of in personam jurisdiction over them.
Because we find that petitioners have no "contacts, ties, or relations" with the
State of Oklahoma, International Shoe Co. v. Washington, supra, at 319, the
judgment of the Supreme Court of Oklahoma is
Reversed.
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ASAHI METAL INDUSTRY CO. v. SUPERIOR COURT,
480 U.S. 102 (1987)
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
No. 85-693.
Argued November 5, 1986
Decided February 24, 1987
Petitioner manufactures tire valve assemblies in Japan and sells them to several
tire manufacturers, including Cheng Shin Rubber Industrial Co. (Cheng Shin).
The sales to Cheng Shin, which amounted to at least 100,000 assemblies annually
from 1978 to 1982, took place in Taiwan, to which the assemblies were shipped
from Japan. Cheng Shin incorporates the assemblies into its finished tires, which
it sells throughout the world, including the United States, where 20 percent of its
sales take place in California. Affidavits indicated that petitioner was aware that
tires incorporating its assemblies would end up in California, but, on the other
hand, that it never contemplated that its sales to Cheng Shin in Taiwan would
subject it to lawsuits in California. Nevertheless, in 1979, a product liability suit
was brought in California Superior Court arising from a motorcycle accident
allegedly caused by defects in a tire manufactured by Cheng Shin, which in turn
filed a cross-complaint seeking indemnification from petitioner. Although the
main suit was eventually settled and dismissed, the Superior Court denied
petitioner's motion to quash the summons issued against it. The State Court of
Appeal then ordered that the summons be quashed, but the State Supreme Court
reversed, finding that petitioner's intentional act of placing its assemblies into the
stream of commerce by delivering them to Cheng Shin in Taiwan, coupled with
its awareness that some of them would eventually reach California, were
sufficient to support state court jurisdiction under the Due Process Clause.
Held:
The judgment is reversed, and the case is remanded.
39 Cal. 3d 35, 702 P.2d 543, reversed and remanded.
JUSTICE O'CONNOR, delivered the opinion of the Court as to Parts I and II-B,
concluding that the state court's exercise of personal jurisdiction over petitioner
would be unreasonable and unfair in violation of the Due Process Clause. Pp.
113-116.
(a) The burden imposed on petitioner by the exercise of state court jurisdiction
would be severe, since petitioner would be required not only to traverse the
distance between Japan and California, but also to submit [480 U.S. 102, 103]
its dispute with Cheng Shin to a foreign judicial system. Such unique burdens
should have significant weight in assessing the reasonableness of extending
personal jurisdiction over national borders. Pp. 113-114.
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Jurisdiction in personam
(b) The interests of Cheng Shin and the forum State in the exercise of jurisdiction
over petitioner would be slight, and would be insufficient to justify the heavy
burdens placed on petitioner. The only surviving question is whether a Japanese
corporation should indemnify a Taiwanese corporation on the bases of a sale
made in Taiwan and a shipment of goods from Japan to Taiwan. The facts do not
demonstrate that it would be more convenient for Cheng Shin to litigate its claim
in California rather than in Taiwan or Japan, while California's interests are
diminished by Cheng Shin's lack of a California residence and by the fact that the
dispute is primarily about indemnity rather than the safety of consumers. While
the possibility of being sued in California might create an additional deterrent to
petitioner's manufacture of unsafe assemblies, the same effect would result from
pressures placed on petitioner by Cheng Shin, whose California sales would
subject it to state tort law. Pp. 114-115.
(c) The procedural and substantive policies of other nations whose interests are
affected by the forum State's assertion of jurisdiction over an alien defendant
must be taken into account, and great care must be exercised when considering
personal jurisdiction in the international context. Although other nations' interests
will differ from case to case, those interests, as well as the Federal Government's
interest in its foreign relations policies, will always be best served by a careful
inquiry into the reasonableness of the particular assertion of jurisdiction, and an
unwillingness to find an alien defendant's serious burdens outweighed where, as
here, the interests of the plaintiff and the forum State are minimal. P. 115.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE POWELL,
and JUSTICE SCALIA, concluded in Parts II-A and III that, even assuming,
arguendo, that petitioner was aware that some of the assemblies it sold to Cheng
Shin would be incorporated into tires sold in California, the facts do not establish
minimum contacts sufficient to render the State's exercise of personal jurisdiction
consistent with fair play and substantial justice as required by the Due Process
Clause. Since petitioner does not do business, have an office, agents, employees,
or property, or advertise or solicit business in California, and since it did not
create, control, or employ the distribution system that brought its assemblies to,
or design them in anticipation of sales in, California, it did not engage in any
action to purposely avail itself of the California market. The "substantial
connection" between a defendant and the forum State necessary for a finding of
minimum contacts must derive from an action purposely directed toward the [480
U.S. 102, 104] forum State, and the mere placement of a product into the stream
of commerce is not such an act, even if done with an awareness that the stream
will sweep the product into the forum State absent additional conduct indicating
an intent to serve the forum state market. Pp. 108-113, 116.
JUSTICE BRENNAN, joined by JUSTICE WHITE, JUSTICE MARSHALL,
and JUSTICE BLACKMUN, agreed with the Court's conclusion in Part II-B that
the exercise of jurisdiction over petitioner would not comport with "fair play and
substantial justice," but disagreed with Part II-A's interpretation of the stream-ofcommerce theory, and with the conclusion that petitioner did not purposely avail
itself of the California market. As long as a defendant is aware that the final
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product is being marketed in the forum State, jurisdiction premised on the
placement of a product into the stream of commerce is consistent with the Due
Process Clause, and no showing of additional conduct is required. Here, even
though petitioner did not design or control the distribution system that carried its
assemblies into California, its regular and extensive sales to a manufacturer it
knew was making regular sales of the final product in California were sufficient
to establish minimum contacts with California. Pp. 116-121.
JUSTICE STEVENS, joined by JUSTICE WHITE and JUSTICE BLACKMUN,
agreed that the California Supreme Court's judgment should be reversed for the
reasons stated in Part II-B of the Court's opinion, but did not join Part II-A, for
the reasons that (1) the Court's holding that the State's exercise of jurisdiction
over petitioner would be "unreasonable and unfair" alone requires reversal, and
renders any examination of minimum contacts unnecessary; and (2) even
assuming that the "purposeful availment" test should be formulated here, Part IIA misapplies it to the facts of this case since, in its dealings with Cheng Shin,
petitioner has arguably engaged in a higher quantum of conduct than the mere
placement of a product into the stream of commerce. Pp. 121-122.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion
for a unanimous Court with respect to Part I, the opinion of the Court with respect
to Part II-B, in which REHNQUIST, C. J., and BRENNAN, WHITE,
MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and an
opinion with respect to Parts II-A and III, in which REHNQUIST, C. J., and
POWELL and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring
in part and concurring in the judgment, in which WHITE, MARSHALL, and
BLACKMUN, JJ., joined, post, p. 116. STEVENS, J., filed an opinion
concurring in part and concurring in the judgment, in which WHITE and
BLACKMUN, JJ., joined, post, p. 121. [480 U.S. 102, 105]
Graydon S. Staring argued the cause for petitioner. With him on the briefs was
Richard D. Hoffman.
Ronald R. Haven argued the cause and filed a brief for respondent. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for Alcan
Aluminio Do Brasil, S. A. by Lawrence A. Salibra II; for the American Chamber
of Commerce in the United Kingdom et al. by Douglas E. Rosenthal, Donald I.
Baker, and Andreas F. Lowenfeld; and for Cassiar Mining Corp. by David Booth
Beers and Wendy S. White.
George E. Murphy filed a brief for the California Manufacturers Association as
amicus curiae urging affirmance.
JUSTICE O'CONNOR announced the judgment of the Court and delivered the
unanimous opinion of the Court with respect to Part I, the opinion of the Court
with respect to Part II-B, in which THE CHIEF JUSTICE, JUSTICE BRENNAN,
JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, JUSTICE
POWELL, and JUSTICE STEVENS join, and an opinion with respect to Parts II-
342
Jurisdiction in personam
A and III, in which THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE
SCALIA join.
This case presents the question whether the mere awareness on the part of a
foreign defendant that the components it manufactured, sold, and delivered
outside the United States would reach the forum State in the stream of commerce
constitutes "minimum contacts" between the defendant and the forum State such
that the exercise of jurisdiction "does not offend `traditional notions of fair play
and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945), quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940).
I
On September 23, 1978, on Interstate Highway 80 in Solano County, California,
Gary Zurcher lost control of his Honda motorcycle and collided with a tractor.
Zurcher was severely injured, and his passenger and wife, Ruth Ann Moreno, was
killed. In September 1979, Zurcher filed a product liability action in the Superior
Court of the State of [480 U.S. 102, 106] California in and for the County of
Solano. Zurcher alleged that the 1978 accident was caused by a sudden loss of air
and an explosion in the rear tire of the motorcycle, and alleged that the
motorcycle tire, tube, and sealant were defective. Zurcher's complaint named,
inter alia, Cheng Shin Rubber Industrial Co., Ltd. (Cheng Shin), the Taiwanese
manufacturer of the tube. Cheng Shin in turn filed a cross-complaint seeking
indemnification from its codefendants and from petitioner, Asahi Metal Industry
Co., Ltd. (Asahi), the manufacturer of the tube's valve assembly. Zurcher's claims
against Cheng Shin and the other defendants were eventually settled and
dismissed, leaving only Cheng Shin's indemnity action against Asahi.
California's long-arm statute authorizes the exercise of jurisdiction "on any basis
not inconsistent with the Constitution of this state or of the United States." Cal.
Civ. Proc. Code Ann. 410.10 (West 1973). Asahi moved to quash Cheng Shin's
service of summons, arguing the State could not exert jurisdiction over it
consistent with the Due Process Clause of the Fourteenth Amendment.
In relation to the motion, the following information was submitted by Asahi and
Cheng Shin. Asahi is a Japanese corporation. It manufactures tire valve
assemblies in Japan and sells the assemblies to Cheng Shin, and to several other
tire manufacturers, for use as components in finished tire tubes. Asahi's sales to
Cheng Shin took place in Taiwan. The shipments from Asahi to Cheng Shin were
sent from Japan to Taiwan. Cheng Shin bought and incorporated into its tire tubes
150,000 Asahi valve assemblies in 1978; 500,000 in 1979; 500,000 in 1980;
100,000 in 1981; and 100,000 in 1982. Sales to Cheng Shin accounted for 1.24
percent of Asahi's income in 1981 and 0.44 percent in 1982. Cheng Shin alleged
that approximately 20 percent of its sales in the United States are in California.
Cheng Shin purchases valve assemblies from other suppliers as well, and sells
finished tubes throughout the world. [480 U.S. 102, 107]
In 1983 an attorney for Cheng Shin conducted an informal examination of the
valve stems of the tire tubes sold in one cycle store in Solano County. The
343
Lectures on the US Legal System
attorney declared that of the approximately 115 tire tubes in the store, 97 were
purportedly manufactured in Japan or Taiwan, and of those 97, 21 valve stems
were marked with the circled letter "A", apparently Asahi's trademark. Of the 21
Asahi valve stems, 12 were incorporated into Cheng Shin tire tubes. The store
contained 41 other Cheng Shin tubes that incorporated the valve assemblies of
other manufacturers. Declaration of Kenneth B. Shepard in Opposition to Motion
to Quash Subpoena, App. to Brief for Respondent 5-6. An affidavit of a manager
of Cheng Shin whose duties included the purchasing of component parts stated:
"`In discussions with Asahi regarding the purchase of valve stem assemblies the
fact that my Company sells tubes throughout the world and specifically the
United States has been discussed. I am informed and believe that Asahi was fully
aware that valve stem assemblies sold to my Company and to others would end
up throughout the United States and in California.'" 39 Cal. 3d 35, 48, n. 4, 702
P.2d 543, 549-550, n. 4 (1985). An affidavit of the president of Asahi, on the
other hand, declared that Asahi "`has never contemplated that its limited sales of
tire valves to Cheng Shin in Taiwan would subject it to lawsuits in California.'"
Ibid. The record does not include any contract between Cheng Shin and Asahi.
Tr. of Oral Arg. 24.
Primarily on the basis of the above information, the Superior Court denied the
motion to quash summons, stating: "Asahi obviously does business on an
international scale. It is not unreasonable that they defend claims of defect in their
product on an international scale." Order Denying Motion to Quash Summons,
Zurcher v. Dunlop Tire & Rubber Co., No. 76180 (Super. Ct., Solano County,
Cal., Apr. 20, 1983).
The Court of Appeal of the State of California issued a peremptory writ of
mandate commanding the Superior Court to quash service of summons. The court
concluded that "it [480 U.S. 102, 108] would be unreasonable to require Asahi
to respond in California solely on the basis of ultimately realized foreseeability
that the product into which its component was embodied would be sold all over
the world including California." App. to Pet. for Cert. B5-B6.
The Supreme Court of the State of California reversed and discharged the writ
issued by the Court of Appeal. 39 Cal. 3d 35, 702 P.2d 543 (1985). The court
observed: "Asahi has no offices, property or agents in California. It solicits no
business in California and has made no direct sales [in California]." Id., at 48, 702
P.2d, at 549. Moreover, "Asahi did not design or control the system of
distribution that carried its valve assemblies into California." Id., at 49, 702 P.2d,
at 549. Nevertheless, the court found the exercise of jurisdiction over Asahi to be
consistent with the Due Process Clause. It concluded that Asahi knew that some
of the valve assemblies sold to Cheng Shin would be incorporated into tire tubes
sold in California, and that Asahi benefited indirectly from the sale in California
of products incorporating its components. The court considered Asahi's
intentional act of placing its components into the stream of commerce - that is, by
delivering the components to Cheng Shin in Taiwan - coupled with Asahi's
awareness that some of the components would eventually find their way into
344
Jurisdiction in personam
California, sufficient to form the basis for state court jurisdiction under the Due
Process Clause.
We granted certiorari, 475 U.S. 1044 (1986), and now reverse.
II
A
The Due Process Clause of the Fourteenth Amendment limits the power of a state
court to exert personal jurisdiction over a nonresident defendant. "[T]he
constitutional touchstone" of the determination whether an exercise of personal
jurisdiction comports with due process "remains whether the defendant
purposefully established `minimum contacts' in the [480 U.S. 102, 109] forum
State." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985), quoting
International Shoe Co. v. Washington, 326 U.S., at 316 . Most recently we have
reaffirmed the oft-quoted reasoning of Hanson v. Denckla, 357 U.S. 235, 253
(1958), that minimum contacts must have a basis in "some act by which the
defendant purposefully avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of its laws."
Burger King, 471 U.S., at 475 . "Jurisdiction is proper . . . where the contacts
proximately result from actions by the defendant himself that create a `substantial
connection' with the forum State." Ibid., quoting McGee v. International Life
Insurance Co., 355 U.S. 220, 223 (1957) (emphasis in original).
Applying the principle that minimum contacts must be based on an act of the
defendant, the Court in World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286 (1980), rejected the assertion that a consumer's unilateral act of bringing the
defendant's product into the forum State was a sufficient constitutional basis for
personal jurisdiction over the defendant. It had been argued in World-Wide
Volkswagen that because an automobile retailer and its wholesale distributor sold
a product mobile by design and purpose, they could foresee being haled into court
in the distant States into which their customers might drive. The Court rejected
this concept of foreseeability as an insufficient basis for jurisdiction under the
Due Process Clause. Id., at 295-296. The Court disclaimed, however, the idea that
"foreseeability is wholly irrelevant" to personal jurisdiction, concluding that
"[t]he forum State does not exceed its powers under the Due Process Clause if it
asserts personal jurisdiction over a corporation that delivers its products into the
stream of commerce with the expectation that they will be purchased by
consumers in the forum State." Id., at 297-298 (citation omitted). The Court
reasoned: [480 U.S. 102, 110]
"When a corporation `purposefully avails itself of the privilege of conducting
activities within the forum State,' Hanson v. Denckla, 357 U.S. [235,] 253
[(1958)], it has clear notice that it is subject to suit there, and can act to alleviate
the risk of burdensome litigation by procuring insurance, passing the expected
costs on to customers, or, if the risks are too great, severing its connection with
the State. Hence if the sale of a product of a manufacturer or distributor . . . is not
simply an isolated occurrence, but arises from the efforts of the manufacturer or
345
Lectures on the US Legal System
distributor to serve, directly or indirectly, the market for its product in other
States, it is not unreasonable to subject it to suit in one of those States if its
allegedly defective merchandise has there been the source of injury to its owners
or to others." Id., at 297.
In World-Wide Volkswagen itself, the state court sought to base jurisdiction not
on any act of the defendant, but on the foreseeable unilateral actions of the
consumer. Since World-Wide Volkswagen, lower courts have been confronted
with cases in which the defendant acted by placing a product in the stream of
commerce, and the stream eventually swept defendant's product into the forum
State, but the defendant did nothing else to purposefully avail itself of the market
in the forum State. Some courts have understood the Due Process Clause, as
interpreted in World-Wide Volkswagen, to allow an exercise of personal
jurisdiction to be based on no more than the defendant's act of placing the product
in the stream of commerce. Other courts have understood the Due Process Clause
and the above-quoted language in World-Wide Volkswagen to require the action
of the defendant to be more purposefully directed at the forum State than the
mere act of placing a product in the stream of commerce.
The reasoning of the Supreme Court of California in the present case illustrates
the former interpretation of World-Wide Volkswagen. The Supreme Court of
California held that, because the stream of commerce eventually brought [480
U.S. 102, 111] some valves Asahi sold Cheng Shin into California, Asahi's
awareness that its valves would be sold in California was sufficient to permit
California to exercise jurisdiction over Asahi consistent with the requirements of
the Due Process Clause. The Supreme Court of California's position was
consistent with those courts that have held that mere foreseeability or awareness
was a constitutionally sufficient basis for personal jurisdiction if the defendant's
product made its way into the forum State while still in the stream of commerce.
See Bean Dredging Corp. v. Dredge Technology Corp., 744 F.2d 1081 (CA5
1984); Hedrick v. Daiko Shoji Co., 715 F.2d 1355 (CA9 1983).
Other courts, however, have understood the Due Process Clause to require
something more than that the defendant was aware of its product's entry into the
forum State through the stream of commerce in order for the State to exert
jurisdiction over the defendant. In the present case, for example, the State Court
of Appeal did not read the Due Process Clause, as interpreted by World-Wide
Volkswagen, to allow "mere foreseeability that the product will enter the forum
state [to] be enough by itself to establish jurisdiction over the distributor and
retailer." App. to Pet. for Cert. B5. In Humble v. Toyota Motor Co., 727 F.2d 709
(CA8 1984), an injured car passenger brought suit against Arakawa Auto Body
Company, a Japanese corporation that manufactured car seats for Toyota.
Arakawa did no business in the United States; it had no office, affiliate,
subsidiary, or agent in the United States; it manufactured its component parts
outside the United States and delivered them to Toyota Motor Company in Japan.
The Court of Appeals, adopting the reasoning of the District Court in that case,
noted that although it "does not doubt that Arakawa could have foreseen that its
product would find its way into the United States," it would be "manifestly
346
Jurisdiction in personam
unjust" to require Arakawa to defend itself in the United States. Id., at 710-711,
quoting 578 F. Supp. 530, 533 (ND Iowa 1982). See also Hutson v. Fehr Bros.,
[480 U.S. 102, 112] Inc., 584 F.2d 833 (CA8 1978); see generally Max
Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 299 (CA3 1985) (collecting "stream
of commerce" cases in which the "manufacturers involved had made deliberate
decisions to market their products in the forum state").
We now find this latter position to be consonant with the requirements of due
process. The "substantial connection," Burger King, 471 U.S., at 475 ; McGee,
355 U.S., at 223 , between the defendant and the forum State necessary for a
finding of minimum contacts must come about by an action of the defendant
purposefully directed toward the forum State. Burger King, supra, at 476; Keeton
v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984). The placement of a product
into the stream of commerce, without more, is not an act of the defendant
purposefully directed toward the forum State. Additional conduct of the
defendant may indicate an intent or purpose to serve the market in the forum
State, for example, designing the product for the market in the forum State,
advertising in the forum State, establishing channels for providing regular advice
to customers in the forum State, or marketing the product through a distributor
who has agreed to serve as the sales agent in the forum State. But a defendant's
awareness that the stream of commerce may or will sweep the product into the
forum State does not convert the mere act of placing the product into the stream
into an act purposefully directed toward the forum State.
Assuming, arguendo, that respondents have established Asahi's awareness that
some of the valves sold to Cheng Shin would be incorporated into tire tubes sold
in California, respondents have not demonstrated any action by Asahi to
purposefully avail itself of the California market. Asahi does not do business in
California. It has no office, agents, employees, or property in California. It does
not advertise or otherwise solicit business in California. It did not create, control,
or employ the distribution system that brought its valves to California. Cf. Hicks
v. Kawasaki Heavy Industries, [480 U.S. 102, 113] 452 F. Supp. 130 (MD Pa.
1978). There is no evidence that Asahi designed its product in anticipation of
sales in California. Cf. Rockwell International Corp. v. Costruzioni Aeronautiche
Giovanni Agusta, 553 F. Supp. 328 (ED Pa. 1982). On the basis of these facts,
the exertion of personal jurisdiction over Asahi by the Superior Court of
California * exceeds the limits of due process.
B
The strictures of the Due Process Clause forbid a state court to exercise personal
jurisdiction over Asahi under circumstances that would offend "`traditional
notions of fair play and substantial justice.'" International Shoe Co. v.
Washington, 326 U.S., at 316 , quoting Milliken v. Meyer, 311 U.S., at 463 .
We have previously explained that the determination of the reasonableness of the
exercise of jurisdiction in each case will depend on an evaluation of several
factors. A court must consider the burden on the defendant, the interests of the
forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its
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Lectures on the US Legal System
determination "the interstate judicial system's interest in obtaining the most
efficient resolution of controversies; and the shared interest of the several States
in furthering fundamental substantive social policies." World-Wide Volkswagen,
444 U.S., at 292 (citations omitted). [480 U.S. 102, 114]
A consideration of these factors in the present case clearly reveals the
unreasonableness of the assertion of jurisdiction over Asahi, even apart from the
question of the placement of goods in the stream of commerce.
Certainly the burden on the defendant in this case is severe. Asahi has been
commanded by the Supreme Court of California not only to traverse the distance
between Asahi's headquarters in Japan and the Superior Court of California in
and for the County of Solano, but also to submit its dispute with Cheng Shin to a
foreign nation's judicial system. The unique burdens placed upon one who must
defend oneself in a foreign legal system should have significant weight in
assessing the reasonableness of stretching the long arm of personal jurisdiction
over national borders.
When minimum contacts have been established, often the interests of the plaintiff
and the forum in the exercise of jurisdiction will justify even the serious burdens
placed on the alien defendant. In the present case, however, the interests of the
plaintiff and the forum in California's assertion of jurisdiction over Asahi are
slight. All that remains is a claim for indemnification asserted by Cheng Shin, a
Tawainese corporation, against Asahi. The transaction on which the
indemnification claim is based took place in Taiwan; Asahi's components were
shipped from Japan to Taiwan. Cheng Shin has not demonstrated that it is more
convenient for it to litigate its indemnification claim against Asahi in California
rather than in Taiwan or Japan.
Because the plaintiff is not a California resident, California's legitimate interests
in the dispute have considerably diminished. The Supreme Court of California
argued that the State had an interest in "protecting its consumers by ensuring that
foreign manufacturers comply with the state's safety standards." 39 Cal. 3d, at 49,
702 P.2d, at 550. The State Supreme Court's definition of California's interest,
however, was overly broad. The dispute between Cheng Shin and Asahi is
primarily about indemnification rather than safety [480 U.S. 102, 115]
standards. Moreover, it is not at all clear at this point that California law should
govern the question whether a Japanese corporation should indemnify a
Taiwanese corporation on the basis of a sale made in Taiwan and a shipment of
goods from Japan to Taiwan. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821
-822 (1985); Allstate Insurance Co. v. Hague, 449 U.S. 302, 312 -313 (1981).
The possibility of being haled into a California court as a result of an accident
involving Asahi's components undoubtedly creates an additional deterrent to the
manufacture of unsafe components; however, similar pressures will be placed on
Asahi by the purchasers of its components as long as those who use Asahi
components in their final products, and sell those products in California, are
subject to the application of California tort law.
348
Jurisdiction in personam
World-Wide Volkswagen also admonished courts to take into consideration the
interests of the "several States," in addition to the forum State, in the efficient
judicial resolution of the dispute and the advancement of substantive policies. In
the present case, this advice calls for a court to consider the procedural and
substantive policies of other nations whose interests are affected by the assertion
of jurisdiction by the California court. The procedural and substantive interests of
other nations in a state court's assertion of jurisdiction over an alien defendant
will differ from case to case. In every case, however, those interests, as well as
the Federal Government's interest in its foreign relations policies, will be best
served by a careful inquiry into the reasonableness of the assertion of jurisdiction
in the particular case, and an unwillingness to find the serious burdens on an alien
defendant outweighed by minimal interests on the part of the plaintiff or the
forum State. "Great care and reserve should be exercised when extending our
notions of personal jurisdiction into the international field." United States v. First
National City Bank, 379 U.S. 378, 404 (1965) (Harlan, J., dissenting). See Born,
Reflections on Judicial Jurisdiction in International Cases, to be published in 17
Ga. J. Int'l & Comp. L. 1 (1987). [480 U.S. 102, 116]
Considering the international context, the heavy burden on the alien defendant,
and the slight interests of the plaintiff and the forum State, the exercise of
personal jurisdiction by a California court over Asahi in this instance would be
unreasonable and unfair.
III
Because the facts of this case do not establish minimum contacts such that the
exercise of personal jurisdiction is consistent with fair play and substantial
justice, the judgment of the Supreme Court of California is reversed, and the case
is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
349
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HELICOPTEROS NACIONALES DE COLOMBIA v.
HALL, 466 U.S. 408 (1984)
No. 82-1127.
Argued November 8, 1983
Decided April 24, 1984
Petitioner, a Colombian corporation, entered into a contract to provide helicopter
transportation for a Peruvian consortium, the alter ego of a joint venture that had
its headquarters in Houston, Tex., during the consortium's construction of a
pipeline in Peru for a Peruvian state-owned oil company. Petitioner has no place
of business in Texas and never has been licensed to do business there. Its only
contacts with the State consisted of sending its chief executive officer to Houston
to negotiate the contract with the consortium, accepting into its New York bank
account checks drawn by the consortium on a Texas bank, purchasing
helicopters, equipment, and training services from a Texas manufacturer, and
sending personnel to that manufacturer's facilities for training. After a helicopter
owned by petitioner crashed in Peru, resulting in the death of respondents'
decedents - United States citizens who were employed by the consortium respondents instituted wrongful-death actions in a Texas state court against the
consortium, the Texas manufacturer, and petitioner. Denying petitioner's motion
to dismiss the actions for lack of in personam jurisdiction over it, the trial court
entered judgment against petitioner on a jury verdict in favor of respondents. The
Texas Court of Civil Appeals reversed, holding that in personam jurisdiction over
petitioner was lacking, but in turn was reversed by the Texas Supreme Court.
Held:
Petitioner's contacts with Texas were insufficient to satisfy the requirements of
the Due Process Clause of the Fourteenth Amendment and hence to allow the
Texas court to assert in personam jurisdiction over petitioner. The one trip to
Houston by petitioner's chief executive officer for the purpose of negotiating the
transportation services contract cannot be regarded as a contact of a "continuous
and systematic" nature, and thus cannot support an assertion of general
jurisdiction. Similarly, petitioner's acceptance of checks drawn on a Texas bank is
of negligible significance for purposes of determining whether petitioner had
sufficient contacts in Texas. Nor were petitioner's purchases of helicopters and
equipment from the Texas manufacturer and the related training trips a sufficient
basis for the Texas court's assertion of jurisdiction. Rosenberg Bros. & Co. v.
Curtis Brown Co., 260 U.S. 516 . Mere purchases, even if occurring at regular
intervals, are not enough [466 U.S. 408, 409] to warrant a State's assertion of in
personam jurisdiction over a nonresident corporation in a cause of action not
related to the purchases. And the fact that petitioner sent personnel to Texas for
training in connection with the purchases did not enhance the nature of
petitioner's contacts with Texas. Pp. 413-419.
638 S. W. 2d 870, reversed.
350
Jurisdiction in personam
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J.,
and WHITE, MARSHALL, POWELL, REHNQUIST, STEVENS, and
O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 419.
Thomas J. Whalen argued the cause for petitioner. With him on the briefs were
Austin P. Magner, Cynthia J. Larsen, James E. Ingram, and Barry A. Chasnoff.
George E. Pletcher argued the cause and filed a brief for respondents. *
[ Footnote * ] Robert L. Stern, Stephen M. Shapiro, William H. Crabtree, and
Edward P. Good filed a brief for the Motor Vehicle Manufacturers Association as
amicus curiae urging reversal.
Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor
General Geller, Kathryn A. Oberly, Michael F. Hertz, and Howard S. Scher filed
a brief for the United States as amicus curiae.
JUSTICE BLACKMUN delivered the opinion of the Court.
We granted certiorari in this case, 460 U.S. 1021 (1983), to decide whether the
Supreme Court of Texas correctly ruled that the contacts of a foreign corporation
with the State of Texas were sufficient to allow a Texas state court to assert
jurisdiction over the corporation in a cause of action not arising out of or related
to the corporation's activities within the State.
I
Petitioner Helicopteros Nacionales de Colombia, S. A. (Helicol), is a Colombian
corporation with its principal place of business in the city of Bogota in that
country. It is engaged in the business of providing helicopter transportation for oil
and construction companies in South America. On [466 U.S. 408, 410] January
26, 1976, a helicopter owned by Helicol crashed in Peru. Four United States
citizens were among those who lost their lives in the accident. Respondents are
the survivors and representatives of the four decedents.
At the time of the crash, respondents' decedents were employed by Consorcio, a
Peruvian consortium, and were working on a pipeline in Peru. Consorcio is the
alter ego of a joint venture named Williams-Sedco-Horn (WSH). The venture had
its headquarters in Houston, Tex. Consorcio had been formed to enable the
venturers to enter into a contract with Petro Peru, the Peruvian state-owned oil
company. Consorcio was to construct a pipeline for Petro Peru running from the
interior of Peru westward to the Pacific Ocean. Peruvian law forbade construction
of the pipeline by any non-Peruvian entity.
Consorcio/WSH needed helicopters to move personnel, materials, and equipment
into and out of the construction area. In 1974, upon request of Consorcio/WSH,
the chief executive officer of Helicol, Francisco Restrepo, flew to the United
States and conferred in Houston with representatives of the three joint venturers.
At that meeting, there was a discussion of prices, availability, working
conditions, fuel, supplies, and housing. Restrepo represented that Helicol could
have the first helicopter on the job in 15 days. The Consorcio/WSH
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Lectures on the US Legal System
representatives decided to accept the contract proposed by Restrepo. Helicol
began performing before the agreement was formally signed in Peru on
November 11, 1974. The contract was written in Spanish on [466 U.S. 408, 411]
official government stationery and provided that the residence of all the parties
would be Lima, Peru. It further stated that controversies arising out of the
contract would be submitted to the jurisdiction of Peruvian courts. In addition, it
provided that Consorcio/WSH would make payments to Helicol's account with
the Bank of America in New York City. App. 12a.
Aside from the negotiation session in Houston between Restrepo and the
representatives of Consorcio/WSH, Helicol had other contacts with Texas.
During the years 1970-1977, it purchased helicopters (approximately 80% of its
fleet), spare parts, and accessories for more than $4 million from Bell Helicopter
Company in Fort Worth. In that period, Helicol sent prospective pilots to Fort
Worth for training and to ferry the aircraft to South America. It also sent
management and maintenance personnel to visit Bell Helicopter in Fort Worth
during the same period in order to receive "plant familiarization" and for
technical consultation. Helicol received into its New York City and Panama City,
Fla., bank accounts over $5 million in payments from Consorcio/WSH drawn
upon First City National Bank of Houston.
Beyond the foregoing, there have been no other business contacts between
Helicol and the State of Texas. Helicol never has been authorized to do business
in Texas and never has had an agent for the service of process within the State. It
never has performed helicopter operations in Texas or sold any product that
reached Texas, never solicited business in Texas, never signed any contract in
Texas, never had any employee based there, and never recruited an employee in
Texas. In addition, Helicol never has owned real or personal property in Texas
and never has maintained an office or establishment there. Helicol has maintained
no records in Texas and has no shareholders in that State. None of the [466 U.S.
408, 412] respondents or their decedents were domiciled in Texas, Tr. of Oral
Arg. 17, 18, but all of the decedents were hired in Houston by Consorcio/WSH to
work on the Petro Peru pipeline project.
Respondents instituted wrongful-death actions in the District Court of Harris
County, Tex., against Consorcio/WSH, Bell Helicopter Company, and Helicol.
Helicol filed special appearances and moved to dismiss the actions for lack of in
personam jurisdiction over it. The motion was denied. After a consolidated jury
trial, judgment was entered against Helicol on a jury verdict of $1,141,200 in
favor of respondents. App. 174a.
The Texas Court of Civil Appeals, Houston, First District, reversed the judgment
of the District Court, holding that in personam jurisdiction over Helicol was
lacking. 616 S. W. 2d 247 (1981). The Supreme Court of Texas, with three
justices dissenting, initially affirmed the judgment of the Court of Civil Appeals.
App. to Pet. for Cert. 46a-62a. Seven months later, however, on motion for
rehearing, the court withdrew its prior opinions and, again with three justices
dissenting, reversed the judgment of the intermediate court. 638 S. W. 2d 870
352
Jurisdiction in personam
(1982). In ruling that the Texas courts had [466 U.S. 408, 413] in personam
jurisdiction, the Texas Supreme Court first held that the State's long-arm statute
reaches as far as the Due Process Clause of the Fourteenth Amendment permits.
Id., at 872. Thus, the only question remaining for the court to decide was whether
it was consistent with the Due Process Clause for Texas courts to assert in
personam jurisdiction over Helicol. Ibid.
II
The Due Process Clause of the Fourteenth Amendment operates to limit the
power of a State to assert in personam [466 U.S. 408, 414] jurisdiction over a
nonresident defendant. Pennoyer v. Neff, 95 U.S. 714 (1878). Due process
requirements are satisfied when in personam jurisdiction is asserted over a
nonresident corporate defendant that has "certain minimum contacts with [the
forum] such that the maintenance of the suit does not offend `traditional notions
of fair play and substantial justice.'" International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940).
When a controversy is related to or "arises out of" a defendant's contacts with the
forum, the Court has said that a "relationship among the defendant, the forum,
and the litigation" is the essential foundation of in personam jurisdiction. Shaffer
v. Heitner, 433 U.S. 186, 204 (1977).
Even when the cause of action does not arise out of or relate to the foreign
corporation's activities in the forum State, due process is not offended by a State's
subjecting the corporation to its in personam jurisdiction when there are sufficient
contacts between the State and the foreign corporation. Perkins v. Benguet
Consolidated Mining Co., 342 U.S. 437 (1952); see Keeton v. Hustler Magazine,
Inc., 465 U.S. 770, 779 -780 (1984). In Perkins, the Court addressed a situation in
which state courts had asserted general jurisdiction over a defendant foreign
corporation. During the Japanese [466 U.S. 408, 415] occupation of the
Philippine Islands, the president and general manager of a Philippine mining
corporation maintained an office in Ohio from which he conducted activities on
behalf of the company. He kept company files and held directors' meetings in the
office, carried on correspondence relating to the business, distributed salary
checks drawn on two active Ohio bank accounts, engaged on Ohio bank to act as
transfer agent, and supervised policies dealing with the rehabilitation of the
corporation's properties in the Philippines. In short, the foreign corporation,
through its president, "ha[d] been carrying on in Ohio a continuous and
systematic, but limited, part of its general business," and the exercise of general
jurisdiction over the Philippine corporation by an Ohio court was "reasonable and
just." 342 U.S., at 438 , 445.
All parties to the present case concede that respondents' claims against Helicol
did not "arise out of," and are not related to, Helicol's activities within Texas. We
thus must [466 U.S. 408, 416] explore the nature of Helicol's contacts with the
State of Texas to determine whether they constitute the kind of continuous and
systematic general business contacts the Court found to exist in Perkins. We hold
that they do not.
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It is undisputed that Helicol does not have a place of business in Texas and never
has been licensed to do business in the State. Basically, Helicol's contacts with
Texas consisted of sending its chief executive officer to Houston for a contractnegotiation session; accepting into its New York bank account checks drawn on a
Houston bank; purchasing helicopters, equipment, and training services from Bell
Helicopter for substantial sums; and sending personnel to Bell's facilities in Fort
Worth for training.
The one trip to Houston by Helicol's chief executive officer for the purpose of
negotiating the transportation-services contract with Consorcio/WSH cannot be
described or regarded as a contact of a "continuous and systematic" nature, as
Perkins described it, see also International Shoe Co. v. Washington, 326 U.S., at
320 , and thus cannot support an assertion of in personam jurisdiction over
Helicol by a Texas court. Similarly, Helicol's acceptance from Consorcio/WSH of
checks drawn on a Texas bank is of negligible significance for purposes of
determining whether Helicol had sufficient contacts in Texas. There is no
indication that Helicol ever requested that the checks be drawn on a Texas bank
or that there was any negotiation between Helicol and Consorcio/WSH with
respect to the location or identity of the bank on which checks would be drawn.
Common sense and everyday experience suggest that, absent unusual
circumstances, the bank on which a check is drawn is generally of little [466 U.S.
408, 417] consequence to the payee and is a matter left to the discretion of the
drawer. Such unilateral activity of another party or a third person is not an
appropriate consideration when determining whether a defendant has sufficient
contacts with a forum State to justify an assertion of jurisdiction. See Kulko v.
California Superior Court, 436 U.S. 84, 93 (1978) (arbitrary to subject one parent
to suit in any State where other parent chooses to spend time while having
custody of child pursuant to separation agreement); Hanson v. Denckla, 357 U.S.
235, 253 (1958) ("The unilateral activity of those who claim some relationship
with a nonresident defendant cannot satisfy the requirement of contact with the
forum State"); see also Lilly, Jurisdiction Over Domestic and Alien Defendants,
69 Va. L. Rev. 85, 99 (1983).
The Texas Supreme Court focused on the purchases and the related training trips
in finding contacts sufficient to support an assertion of jurisdiction. We do not
agree with that assessment, for the Court's opinion in Rosenberg Bros. & Co. v.
Curtis Brown Co., 260 U.S. 516 (1923) (Brandeis, J., for a unanimous tribunal),
makes clear that purchases and related trips, standing alone, are not a sufficient
basis for a State's assertion of jurisdiction.
The defendant in Rosenberg was a small retailer in Tulsa, Okla., who dealt in
men's clothing and furnishings. It never had applied for a license to do business in
New York, nor had it at any time authorized suit to be brought against it there. It
never had an established place of business in New York and never regularly
carried on business in that State. Its only connection with New York was that it
purchased from New York wholesalers a large portion of the merchandise sold in
its Tulsa store. The purchases sometimes were made by correspondence and
sometimes through visits to New York by an officer of the defendant. The Court
354
Jurisdiction in personam
concluded: "Visits on such business, even if occurring at regular intervals, would
not warrant the inference that the corporation was present within the jurisdiction
of [New York]." Id., at 518. [466 U.S. 408, 418]
This Court in International Shoe acknowledged and did not repudiate its holding
in Rosenberg. See 326 U.S., at 318 . In accordance with Rosenberg, we hold that
mere purchases, even if occurring at regular intervals, are not enough to warrant a
State's assertion of in personam jurisdiction over a nonresident corporation in a
cause of action not related to those purchase transactions. Nor can we conclude
that the fact that Helicol sent personnel into Texas for training in connection with
the purchase of helicopters and equipment in that State in any way enhanced the
nature of Helicol's contacts with Texas. The training was a part of the package of
goods and services purchased by Helicol from Bell Helicopter. The brief presence
of Helicol employees in Texas for the purpose of attending the training sessions
is no more a significant contact than were the trips to New York made by the
buyer for the retail store in Rosenberg. See also Kulko v. California Superior
Court, 436 U.S., at 93 (basing California jurisdiction on 3-day and 1-day
stopovers in that State "would make a mockery of" due process limitations on
assertion of personal jurisdiction).
III
We hold that Helicol's contacts with the State of Texas were insufficient to satisfy
the requirements of the Due Process [466 U.S. 408, 419] Clause of the
Fourteenth Amendment. 13 Accordingly, we reverse the judgment of the
Supreme Court of Texas.
It is so ordered.
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Section 2 – E-commerce
From the early stage on, the fact that a Web page could be accessed from
the forum never has been considered as ascertaining jurisdiction81, except
if there is a announcement in local media as well82 or that the Web page
especially targets local consumers83. In regard to e-commerce cases, the
American case law asserts personal jurisdiction if there is a certain degree
of interactivity which moves along a sliding scale as it results from the
Zippo case84. At one end of the spectrum are situations where the
defendant clearly does business over the Internet. If the defendant enters
into contracts with residents of a foreign jurisdiction that involve the
knowing and repeated transmission of computer files over the Internet,
personal jurisdiction is proper85. At the opposite end are situations where a
defendant has simply posted information on an Internet Web site, which is
accessible to users in a foreign jurisdiction. A passive Web site that does
little more than make information available to those who are interested in
it is not grounds for the exercise of personal jurisdiction86. The middle
ground is occupied by interactive Web sites where a user can exchange
information with the host computer. In these cases, the exercise of
jurisdiction is determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on the Web
site87.
Interactivity can be “active solicitations”, “promotional activities”,
targeted mailing lists, responds given to e-mails, etc.; briefly, any activity
that permits the Webmaster to foresee reasonably the possibility to be
hailed in the forum court88. If case law is unanimous to consider that the
mere location of the host server cannot be a minimum contact to assert
81
Patriot Systems, Inc. v. C-Cubed Corp., 21 F. Supp.2d 1318 (D. Utah 1998).
Heroes, Inc. v. Heroes Foundation, 958 F. Supp. 1, 3-5 (D.D.C. 1996).
83
Vitullo v. Velocity Powerboats, Inc., 1998 W.L. 246152 (N.D. III, 1998).
84
Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123
(W.D. Penn. 1997).
85
Compuserve v. Patterson, 89 F. 2D 1257 (6th Circuit 1996).
86
Bensusan Restaurant v. King, 937 F. Supp. 296 (SDNY 1996).
87
Maritz v. Cybergold, 1996 US Dist. Lexis 14976 (EDMo Aug. 19, 1996.
88
For a more detailled analisys, cf: Graham, El derecho internacional privado del
comercio electrónico, Themis, 2003, # 76 sq.
82
356
Jurisdiction in personam
jurisdiction89, it has also been ruled that defendant can be healed into the
forum where resides the Webmaster or in other words where the
“administration, maintenance, and upkeep of defendant’s website”
occurs90.
89
E.g. Amberson Holdings LLC v. Westside Story Newspaper, 110 F.Supp 2d 332
(D.N.J., 2000).
90
TFCCS v. Nolan (4th Cir, 2001).
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Cases and Materials
Zippo Mfr. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119
(W.D. Pa. 1997)
MEMORANDUM OPINION
McLAUGHLIN, District Judge.
This is an Internet domain name dispute. At this stage of the controversy, we
must decide the Constitutionally permissible reach of Pennsylvania's Long Arm
Statute, 42 Pa.C.S.A. § 5322, through cyberspace. Plaintiff Zippo Manufacturing
Corporation ("Manufacturing") has filed a five count complaint against Zippo
Dot Com, Inc. ("Dot Com") alleging trademark dilution, infringement, and false
designation under the Federal Trademark Act, 15 U.S.C. §§ 1051-1127. In
addition, the Complaint alleges causes of action based on state law trademark
dilution under 54 Pa.C.S.A. § 1124, and seeks equitable accounting and
imposition of a constructive trust. Dot Com has moved to dismiss for lack of
personal jurisdiction and improper venue pursuant to Fed.R.Civ.P. 12(b)(2) and
(3) or, in the alternative, to transfer the case pursuant to 28 U.S.C. § 1406(a). For
the reasons set forth below, Defendant's motion is denied.
I. BACKGROUND
The facts relevant to this motion are as follows. Manufacturing is a Pennsylvania
corporation with its principal place of business in Bradford, Pennsylvania.
Manufacturing makes, among other things, well known "Zippo" tobacco lighters.
Dot Com is a California corporation with its principal place of business in
Sunnyvale, California. Dot Com operates an Internet Web site and an Internet
news service and has obtained the exclusive right to use the domain names
"zippo.com", "zippo.net" and "zipponews.com" on the Internet.
Dot Com's Web site contains information about the company, advertisements and
an application for its Internet news service. The news service itself consists of
three levels of membership--public/free, "Original" and "Super." Each successive
level offers access to a greater number of Internet newsgroups. A customer who
wants to subscribe to either the "Original" or "Super" level of service, fills out an
on-line application that asks for a variety of information including the person's
name and address. Payment is made by credit card over the Internet or the
telephone. The application is then processed and the subscriber is assigned a
password which permits the subscriber to view and/or download Internet
newsgroup messages that are stored on the Defendant's server in California.
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Jurisdiction in personam
Dot Com's contacts with Pennsylvania have occurred almost exclusively over the
Internet. Dot Com's offices, employees and Internet servers are located in
California. Dot Com maintains no offices, employees or agents in Pennsylvania.
Dot Com's advertising for its service to Pennsylvania residents involves posting
information about its service on its Web page, which is accessible to
Pennsylvania residents via the Internet. Defendant has approximately 140,000
paying subscribers worldwide. Approximately two percent (3,000) of those
subscribers are Pennsylvania residents. These subscribers have contracted to
receive Dot Com's service by visiting its Web site and filling out the application.
Additionally, Dot Com has entered into agreements with seven Internet access
providers in Pennsylvania to permit their subscribers to access Dot Com's news
service. Two of these providers are located in the Western District of
Pennsylvania.
The basis of the trademark claims is Dot Com's use of the word "Zippo" in the
domain names it holds, in numerous locations in its Web site and in the heading
of Internet newsgroup messages that have been posted by Dot Com subscribers.
When an Internet user views or downloads a newsgroup message posted by a Dot
Com subscriber, the word "Zippo" appears in the "Message-Id" and
"Organization" sections of the heading. The news message itself, containing text
and/or pictures, follows. Manufacturing points out that some of the messages
contain adult oriented, sexually explicit subject matter.
II. STANDARD OF REVIEW
When a defendant raises the defense of the court's lack of personal jurisdiction,
the burden falls upon the plaintiff to come forward with sufficient facts to
establish that jurisdiction is proper. Mellon Bank (East) PSFS, N.A. v. Farino,
960 F.2d 1217, 1223 (3d Cir.1992) (citing Carteret Savings Bank v. Shushan, 954
F.2d 141 (3d Cir.1992), cert. denied 506 U.S. 817, 113 S.Ct. 61, 121 L.Ed.2d 29
(1992)). The plaintiff meets this burden by making a prima facie showing of
"sufficient contacts between the defendant and the forum state." Mellon East, 960
F.2d at 1223 (citing Provident Nat. Bank v. California Fed. Sav. & Loan Assoc.,
819 F.2d 434 (3d Cir.1987)).
III. DISCUSSION
A. Personal Jurisdiction
1. The Traditional Framework
Our authority to exercise personal jurisdiction in this case is conferred by state
law. Fed.R.Civ.P. 4(e); Mellon, 960 F.2d at 1221. The extent to which we may
exercise that authority is governed by the Due Process Clause of the Fourteenth
Amendment to the Federal Constitution. Kulko v. Superior Court of California,
436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978).
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Pennsylvania's long arm jurisdiction statute is codified at 42 Pa.C.S.A. § 5322(a).
The portion of the statute authorizing us to exercise jurisdiction here permits the
exercise of jurisdiction over non-resident defendants upon: (2) Contracting to
supply services or things in this Commonwealth. 42 Pa.C.S.A. § 5322(a). It is
undisputed that Dot Com contracted to supply Internet news services to
approximately 3,000 Pennsylvania residents and also entered into agreements
with seven Internet access providers in Pennsylvania. Moreover, even if Dot
Com's conduct did not satisfy a specific provision of the statute, we would
nevertheless be authorized to exercise jurisdiction to the "fullest extent allowed
under the Constitution of the United States." 42 Pa.C.S.A. § 5322(b).
The Constitutional limitations on the exercise of personal jurisdiction differ
depending upon whether a court seeks to exercise general or specific jurisdiction
over a non-resident defendant. Mellon, 960 F.2d at 1221. General jurisdiction
permits a court to exercise personal jurisdiction over a non-resident defendant for
non-forum related activities when the defendant has engaged in "systematic and
continuous" activities in the forum state. Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404
(1984). In the absence of general jurisdiction, specific jurisdiction permits a court
to exercise personal jurisdiction over a non-resident defendant for forum-related
activities where the "relationship between the defendant and the forum falls
within the 'minimum contacts' framework" of International Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny.
Mellon, 960 F.2d at 1221. Manufacturing does not contend that we should
exercise general personal jurisdiction over Dot Com. Manufacturing concedes
that if personal jurisdiction exists in this case, it must be specific.
A three-pronged test has emerged for determining whether the exercise of
specific personal jurisdiction over a non-resident defendant is appropriate: (1) the
defendant must have sufficient "minimum contacts" with the forum state, (2) the
claim asserted against the defendant must arise out of those contacts, and (3) the
exercise of jurisdiction must be reasonable. Id. The "Constitutional touchstone"
of the minimum contacts analysis is embodied in the first prong, "whether the
defendant purposefully established" contacts with the forum state. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528
(1985) (citing International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct.
154, 159- 60, 90 L.Ed. 95 (1945)). Defendants who " 'reach out beyond one state'
and create continuing relationships and obligations with the citizens of another
state are subject to regulation and sanctions in the other State for consequences of
their actions." Id. (citing Travelers Health Assn. v. Virginia, 339 U.S. 643, 647,
70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950)). "[T]he foreseeability that is critical to
the due process analysis is ... that the defendant's conduct and connection with the
forum State are such that he should reasonably expect to be haled into court
there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct.
559, 567, 62 L.Ed.2d 490 (1980). This protects defendants from being forced to
answer for their actions in a foreign jurisdiction based on "random, fortuitous or
attenuated" contacts. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104
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S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984). "Jurisdiction is proper, however, where
contacts proximately result from actions by the defendant himself that create a
'substantial connection' with the forum State." Burger King, 471 U.S. at 475, 105
S.Ct. at 2183-84 (citing McGee v. International Life Insurance Co., 355 U.S. 220,
223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957)).
The "reasonableness" prong exists to protect defendants against unfairly
inconvenient litigation. World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at
564-65. Under this prong, the exercise of jurisdiction will be reasonable if it does
not offend "traditional notions of fair play and substantial justice." International
Shoe, 326 U.S. at 316, 66 S.Ct. at 158. When determining the reasonableness of a
particular forum, the court must consider the burden on the defendant in light of
other factors including: "the forum state's interest in adjudicating the dispute; the
plaintiff's interest in obtaining convenient and effective relief, at least when that
interest is not adequately protected by the plaintiff's right to choose the forum; the
interstate judicial system's interest in obtaining the most efficient resolution of
controversies; and the shared interest of the several states in furthering
fundamental substantive social policies." World-Wide Volkswagen, 444 U.S. at
292, 100 S.Ct. at 564 (internal citations omitted).
2. The Internet and Jurisdiction
In Hanson v. Denckla, the Supreme Court noted that "[a]s technological progress
has increased the flow of commerce between States, the need for jurisdiction has
undergone a similar increase." Hanson v. Denckla, 357 U.S. 235, 250-51, 78
S.Ct. 1228, 1237-39, 2 L.Ed.2d 1283 (1958). Twenty seven years later, the Court
observed that jurisdiction could not be avoided "merely because the defendant did
not physically enter the forum state." Burger King, 471 U.S. at 476, 105 S.Ct. at
2184. The Court observed that:
[I]t is an inescapable fact of modern commercial life that a substantial amount of
commercial business is transacted solely by mail and wire communications across
state lines, thus obviating the need for physical presence within a State in which
business is conducted. Id.
Enter the Internet, a global " 'super-network' of over 15,000 computer networks
used by over 30 million individuals, corporations, organizations, and educational
institutions worldwide." Panavision Intern., L.P. v. Toeppen, 938 F.Supp. 616
(C.D.Cal.1996) (citing American Civil Liberties Union v. Reno, 929 F.Supp. 824,
830-48 (E.D.Pa.1996)). "In recent years, businesses have begun to use the
Internet to provide information and products to consumers and other businesses."
Id. The Internet makes it possible to conduct business throughout the world
entirely from a desktop. With this global revolution looming on the horizon, the
development of the law concerning the permissible scope of personal jurisdiction
based on Internet use is in its infant stages. The cases are scant. Nevertheless, our
review of the available cases and materials reveals that the likelihood that
personal jurisdiction can be constitutionally exercised is directly proportionate to
the nature and quality of commercial activity that an entity conducts over the
Internet. This sliding scale is consistent with well developed personal jurisdiction
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principles. At one end of the spectrum are situations where a defendant clearly
does business over the Internet. If the defendant enters into contracts with
residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal jurisdiction is proper.
E.g. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996). At the opposite
end are situations where a defendant has simply posted information on an Internet
Web site which is accessible to users in foreign jurisdictions. A passive Web site
that does little more than make information available to those who are interested
in it is not grounds for the exercise personal jurisdiction. E.g. Bensusan
Restaurant Corp., v. King, 937 F.Supp. 295 (S.D.N.Y.1996). The middle ground
is occupied by interactive Web sites where a user can exchange information with
the host computer. In these cases, the exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of the exchange of
information that occurs on the Web site. E.g. Maritz, Inc. v. Cybergold, Inc., 947
F.Supp. 1328 (E.D.Mo.1996).
Traditionally, when an entity intentionally reaches beyond its boundaries to
conduct business with foreign residents, the exercise of specific jurisdiction is
proper. Burger King, 471 U.S. at 475, 105 S.Ct. at 2183- 84. Different results
should not be reached simply because business is conducted over the Internet. In
CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996), the Sixth Circuit
addressed the significance of doing business over the Internet. In that case,
Patterson, a Texas resident, entered into a contract to distribute shareware
through CompuServe's Internet server located in Ohio. CompuServe, 89 F.3d at
1260. From Texas, Patterson electronically uploaded thirty-two master software
files to CompuServe's server in Ohio via the Internet. Id. at 1261. One of
Patterson's software products was designed to help people navigate the Internet.
Id. When CompuServe later began to market a product that Patterson believed to
be similar to his own, he threatened to sue. Id. CompuServe brought an action in
the Southern District of Ohio, seeking a declaratory judgment. Id. The District
Court granted Patterson's motion to dismiss for lack of personal jurisdiction and
CompuServe appealed. Id. The Sixth Circuit reversed, reasoning that Patterson
had purposefully directed his business activities toward Ohio by knowingly
entering into a contract with an Ohio resident and then "deliberately and
repeatedly" transmitted files to Ohio. Id. at 1264- 66.
In Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E.D.Mo.1996), the
defendant had put up a Web site as a promotion for its upcoming Internet service.
The service consisted of assigning users an electronic mailbox and then
forwarding advertisements for products and services that matched the users'
interests to those electronic mailboxes. Maritz, 947 F.Supp. at 1330. The
defendant planned to charge advertisers and provide users with incentives to view
the advertisements. Id. Although the service was not yet operational, users were
encouraged to add their address to a mailing list to receive updates about the
service. Id. The court rejected the defendant's contention that it operated a
"passive Web site." Id. at 1333- 34. The court reasoned that the defendant's
conduct amounted to "active solicitations" and "promotional activities" designed
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Jurisdiction in personam
to "develop a mailing list of Internet users" and that the defendant
"indiscriminately responded to every user" who accessed the site. Id. at 1333-34.
Inset Systems, Inc. v. Instruction Set, 937 F.Supp. 161 (D.Conn.1996) represents
the outer limits of the exercise of personal jurisdiction based on the Internet. In
Inset Systems, a Connecticut corporation sued a Massachusetts corporation in the
District of Connecticut for trademark infringement based on the use of an Internet
domain name. Inset Systems, 937 F.Supp. at 162. The defendant's contacts with
Connecticut consisted of posting a Web site that was accessible to approximately
10,000 Connecticut residents and maintaining a toll free number. Id. at 165. The
court exercised personal jurisdiction, reasoning that advertising on the Internet
constituted the purposeful doing of business in Connecticut because "unlike
television and radio advertising, the advertisement is available continuously to
any Internet user." Id. at 165.
Bensusan Restaurant Corp., v. King, 937 F.Supp. 295 (S.D.N.Y.1996) reached a
different conclusion based on a similar Web site. In Bensusan, the operator of a
New York jazz club sued the operator of a Missouri jazz club for trademark
infringement. Bensusan, 937 F.Supp. at 297. The Internet Web site at issue
contained general information about the defendant's club, a calendar of events
and ticket information. Id. However, the site was not interactive. Id. If a user
wanted to go to the club, she would have to call or visit a ticket outlet and then
pick up tickets at the club on the night of the show. Id. The court refused to
exercise jurisdiction based on the Web site alone, reasoning that it did not rise to
the level of purposeful availment of that jurisdiction's laws. The court
distinguished the case from CompuServe, supra, where the user had " 'reached
out' from Texas to Ohio and 'originated and maintained' contacts with Ohio." Id.
at 301.
Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So.2d 1351
(Fla.App.1994), review denied, 645 So.2d 455 (Fla.1994) is not inconsistent with
the above cases. In Pres-Kap, a majority of a three-judge intermediate state
appeals court refused to exercise jurisdiction over a consumer of an on- line
airline ticketing service. Pres-Kap involved a suit on a contract dispute in a
Florida court by a Delaware corporation against its New York customer. PresKap, 636 So.2d at 1351-52. The defendant had leased computer equipment which
it used to access an airline ticketing computer located in Florida. Id. The contract
was solicited, negotiated, executed and serviced in New York. Id. at 1352. The
defendant's only contact with Florida consisted of logging onto the computer
located in Florida and mailing payments for the leased equipment to Florida. Id.
at 1353. Pres-Kap is distinguishable from the above cases and the case at bar
because it addressed the exercise of jurisdiction over a consumer of on-line
services as opposed to a seller. When a consumer logs onto a server in a foreign
jurisdiction he is engaging in a fundamentally different type of contact than an
entity that is using the Internet to sell or market products or services to residents
of foreign jurisdictions. The Pres-Kap court specifically expressed concern over
the implications of subjecting users of "on-line" services with contracts with outof-state networks to suit in foreign jurisdictions. Id. at 1353.
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3. Application to this Case
First, we note that this is not an Internet advertising case in the line of Inset
Systems and Bensusan, supra. Dot Com has not just posted information on a Web
site that is accessible to Pennsylvania residents who are connected to the Internet.
This is not even an interactivity case in the line of Maritz, supra. Dot Com has
done more than create an interactive Web site through which it exchanges
information with Pennsylvania residents in hopes of using that information for
commercial gain later. We are not being asked to determine whether Dot Com's
Web site alone constitutes the purposeful availment of doing business in
Pennsylvania. This is a "doing business over the Internet" case in the line of
CompuServe, supra. We are being asked to determine whether Dot Com's
conducting of electronic commerce with Pennsylvania residents constitutes the
purposeful availment of doing business in Pennsylvania. We conclude that it
does. Dot Com has contracted with approximately 3,000 individuals and seven
Internet access providers in Pennsylvania. The intended object of these
transactions has been the downloading of the electronic messages that form the
basis of this suit in Pennsylvania.
We find Dot Com's efforts to characterize its conduct as falling short of
purposeful availment of doing business in Pennsylvania wholly unpersuasive. At
oral argument, Defendant repeatedly characterized its actions as merely
"operating a Web site" or "advertising." Dot Com also cites to a number of cases
from this Circuit which, it claims, stand for the proposition that merely
advertising in a forum, without more, is not a sufficient minimal contact. This
argument is misplaced. Dot Com has done more than advertise on the Internet in
Pennsylvania. Defendant has sold passwords to approximately 3,000 subscribers
in Pennsylvania and entered into seven contracts with Internet access providers to
furnish its services to their customers in Pennsylvania.
Dot Com also contends that its contacts with Pennsylvania residents are
"fortuitous" within the meaning of World-Wide Volkswagen, 444 U.S. 286, 100
S.Ct. 559 (1980). Defendant argues that it has not "actively" solicited business in
Pennsylvania and that any business it conducts with Pennsylvania residents has
resulted from contacts that were initiated by Pennsylvanians who visited the
Defendant's Web site. The fact that Dot Com's services have been consumed in
Pennsylvania is not "fortuitous" within the meaning of World- Wide Volkswagen.
In World-Wide Volkswagen, a couple that had purchased a vehicle in New York,
while they were New York residents, were injured while driving that vehicle
through Oklahoma and brought suit in an Oklahoma state court. World-Wide
Volkswagen, 444 U.S. at 288, 100 S.Ct. at 562-63. The manufacturer did not sell
its vehicles in Oklahoma and had not made an effort to establish business
relationships in Oklahoma. Id. at 295, 100 S.Ct. at 566. The Supreme Court
characterized the manufacturer's ties with Oklahoma as fortuitous because they
resulted entirely out the fact that the plaintiffs had driven their car into that state.
Id.
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Here, Dot Com argues that its contacts with Pennsylvania residents are fortuitous
because Pennsylvanians happened to find its Web site or heard about its news
service elsewhere and decided to subscribe. This argument misconstrues the
concept of fortuitous contacts embodied in World-Wide Volkswagen. Dot Com's
contacts with Pennsylvania would be fortuitous within the meaning of WorldWide Volkswagen if it had no Pennsylvania subscribers and an Ohio subscriber
forwarded a copy of a file he obtained from Dot Com to a friend in Pennsylvania
or an Ohio subscriber brought his computer along on a trip to Pennsylvania and
used it to access Dot Com's service. That is not the situation here. Dot Com
repeatedly and consciously chose to process Pennsylvania residents' applications
and to assign them passwords. Dot Com knew that the result of these contracts
would be the transmission of electronic messages into Pennsylvania. The
transmission of these files was entirely within its control. Dot Com cannot
maintain that these contracts are "fortuitous" or "coincidental" within the meaning
of World-Wide Volkswagen. When a defendant makes a conscious choice to
conduct business with the residents of a forum state, "it has clear notice that it is
subject to suit there." World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at
567. Dot Com was under no obligation to sell its services to Pennsylvania
residents. It freely chose to do so, presumably in order to profit from those
transactions. If a corporation determines that the risk of being subject to personal
jurisdiction in a particular forum is too great, it can choose to sever its connection
to the state. Id. If Dot Com had not wanted to be amenable to jurisdiction in
Pennsylvania, the solution would have been simple--it could have chosen not to
sell its services to Pennsylvania residents.
Next, Dot Com argues that its forum-related activities are not numerous or
significant enough to create a "substantial connection" with Pennsylvania.
Defendant points to the fact that only two percent of its subscribers are
Pennsylvania residents. However, the Supreme Court has made clear that even a
single contact can be sufficient. McGee, 355 U.S. at 223, 78 S.Ct. at 201. The test
has always focused on the "nature and quality" of the contacts with the forum and
not the quantity of those contacts. International Shoe, 326 U.S. at 320, 66 S.Ct. at
160. The Sixth Circuit also rejected a similar argument in CompuServe when it
wrote that the contacts were "deliberate and repeated even if they yielded little
revenue." CompuServe, 89 F.3d at 1265.
We also conclude that the cause of action arises out of Dot Com's forum- related
conduct in this case. The Third Circuit has stated that "a cause of action for
trademark infringement occurs where the passing off occurs." Cottman
Transmission Systems Inc. v. Martino, 36 F.3d 291, 294 (citing Tefal, S.A. v.
Products Int'l Co., 529 F.2d 495, 496 n. 1 (3d Cir.1976); Indianapolis Colts v.
Metro. Baltimore Football, 34 F.3d 410 (7th Cir.1994). In Tefal, the maker and
distributor of T-Fal cookware sued a partnership of California corporations in the
District of New Jersey for trademark infringement. Tefal, 529 F.2d at 496. The
defendants objected to venue in New Jersey, arguing that the contested trademark
accounted for only about five percent of national sales. Id. On appeal, the Third
Circuit concluded that since substantial sales of the product bearing the allegedly
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infringing mark took place in New Jersey, the cause of action arose in New
Jersey and venue was proper. Tefal, 529 F.2d at 496-97.
In Indianapolis Colts, also case cited by the Third Circuit in Cottman, an Indiana
National Football League franchise sued a Maryland Canadian Football League
franchise in the Southern District of Indiana, alleging trademark infringement.
Indianapolis Colts, 34 F.3d at 411. On appeal, the Seventh Circuit held that
personal jurisdiction was appropriate in Indiana because trademark infringement
is a tort-like injury and a substantial amount of the injury from the alleged
infringement was likely to occur in Indiana. Id. at 412.
In the instant case, both a significant amount of the alleged infringement and
dilution, and resulting injury have occurred in Pennsylvania. The object of Dot
Com's contracts with Pennsylvania residents is the transmission of the messages
that Plaintiff claims dilute and infringe upon its trademark. When these messages
are transmitted into Pennsylvania and viewed by Pennsylvania residents on their
computers, there can be no question that the alleged infringement and dilution
occur in Pennsylvania. Moreover, since Manufacturing is a Pennsylvania
corporation, a substantial amount of the injury from the alleged wrongdoing is
likely to occur in Pennsylvania. Thus, we conclude that the cause of action arises
out of Dot Com's forum-related activities under the authority of both Tefal and
Indianapolis Colts, supra.
Finally, Dot Com argues that the exercise of jurisdiction would be unreasonable
in this case. We disagree. There can be no question that Pennsylvania has a strong
interest in adjudicating disputes involving the alleged infringement of trademarks
owned by resident corporations. We must also give due regard to the Plaintiff's
choice to seek relief in Pennsylvania. Kulko, 436 U.S. at 92, 98 S.Ct. at 1696-97.
These concerns outweigh the burden created by forcing the Defendant to defend
the suit in Pennsylvania, especially when Dot Com consciously chose to conduct
business in Pennsylvania, pursuing profits from the actions that are now in
question. The Due Process Clause is not a "territorial shield to interstate
obligations that have been voluntarily assumed." Burger King, 471 U.S. at 474,
105 S.Ct. at 2183.
B. Venue Under 28 U.S.C. § 1391
Defendant argues that, under the law of this Circuit, venue is only proper in
trademark cases in the judicial district in which "a substantial part of the events or
omissions giving rise to the claim occurred." In support of this proposition,
Defendant cites Cottman Transmission Systems, Inc. v. Martino, 36 F.3d 291 (3d
Cir.1994). We cannot agree.
Venue in this case is governed by 28 U.S.C. § 1391(b), the relevant portion of
which provides:
(b) A civil action wherein jurisdiction is not founded solely on diversity of
citizenship may, except as otherwise provided by law, be brought only in (1) a
judicial district where any defendant resides, if all defendants reside in the same
State, (2) a judicial district in which a substantial part of the events or omissions
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giving rise to the claim occurred, or a substantial part of the property that is the
subject of the action is situated, or (3) a judicial district in which the defendant
may be found if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b). Subsection (c) further provides that a corporate defendant is
"deemed to reside in any judicial district in which it is subject to personal
jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c). Dot Com
is the only defendant in this case and it is a corporation. Thus, under the plain
language of 28 U.S.C. § 1391(b)(1), our previous discussion of personal
jurisdiction is dispositive of the venue issue. Contrary to Dot Com's contention,
Cottman does not command a different result.
Cottman involved a suit by a Pennsylvania corporation against a former Michigan
franchisee and his wholly owned corporation for trademark infringement arising
out of the continued use of the plaintiff's trademark after termination of the
franchise agreement. The suit was brought in the Eastern District of
Pennsylvania. Both defendants were Michigan residents and the corporation did
business exclusively in Michigan. In the district court, the plaintiff relied
exclusively on 28 U.S.C. § 1391(b)(2) to establish venue. The district court found
venue proper, reasoning that a "substantial part of the events or omissions giving
rise to the claim occurred" in Pennsylvania. Cottman Transmission v. Metro
Distributing, 796 F.Supp. 838, 844 (E.D.Pa.1992). Thus, on appeal, the only issue
before the Third Circuit was the propriety of venue under § 1391(b)(2). In fact,
the Third Circuit expressly stated that it was analyzing the case under §
1391(b)(2). Cottman, 36 F.3d at 294. The Third Circuit read the record as only
capable of supporting the contention that the defendants attempted to pass off the
trademarks at issue in the Eastern District of Michigan. Id. at 296. Thus, the Third
Circuit reversed, because a "substantial part of the events or omissions giving rise
to the claim" had not occurred in the Eastern District of Pennsylvania. Id.
The fact that the Third Circuit analyzed Cottman under the standard in §
1391(b)(2) does not mean that it applies to every trademark case. In fact, at oral
argument, Dot Com conceded that if its reading of Cottman were the law, it
would effectively render § 1391(b)(1) inapplicable to trademark cases and require
the plaintiff to always satisfy § 1391(b)(2) in order to lay venue. If the Third
Circuit had intended to create such a radical departure from the plain language of
§ 1391, it would have said so.
Since venue has been properly laid in this District, we cannot dismiss the action
under 28 U.S.C. § 1406(a). Jumara v. State Farm Inc. Co., 55 F.3d 873, 877 (3d
Cir.1995). We are also not permitted to compel the Plaintiff to accept a transfer
against its wishes. Carteret v. Shushan, 919 F.2d 225, 232 (3d Cir.1990).
IV. CONCLUSION
We conclude that this Court may appropriately exercise personal jurisdiction over
the Defendant and that venue is proper in this judicial district.
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368
Section 3 – Torts
In regards to torts, jurisdiction is proper if the intentional conduct in one
state was allegedly calculated to cause injury to a victim in another state91.
Due process permits personal jurisdiction over a defendant in any State
with which the defendant has certain minimum contacts such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice, as set by International Shoe. In judging minimum
contacts, a court properly focuses on the relationship among the
defendant, the forum, and the litigation. So it is if the “effect” of the
conduct produces harm in the jurisdiction of the seized court and that the
author of the wrongful conduct could have reasonably anticipated being
haled into court there. The effect theory is nothing else than a passive
form of territorialism.
In regards to cyber-torts, the “effect” doctrine of Calder v. Jones92 is
applied, as illustrated by the so-called DeCSS case. Defendant published
on his Web site a program called DeCSS designed to defeat an
encryption-based copy protection of DVDs – the CSS. Even though
defendant was living and working in Indiana, the California courts
established their jurisdiction on the ground the harm occurred in
California, where the motion picture industry and the major CSS licensees
were centered in California; fact that not was unknown to the defendant.
Following the ruling of Calder v. Jones, the Court of Appeal of California
applied the “effect” test holding that the intentional conduct in Indiana
was calculated to cause deliberately injury to respondents in California93.
91
Calder v. Jones, 465 US 783 (1984).
465 US 783 (1984).
93
Pavlovich v. The Superior Court of Santa Clara County, CV 786804 (2001).
92
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370
Cases and Materials
CALDER v. JONES, 465 U.S. 783 (1984)
No. 82-1401.
Argued November 8, 1983
Decided March 20, 1984
Respondent, a professional entertainer who lives and works in California and
whose television career was centered there, brought suit in California Superior
Court, claiming that she had been libeled in an article written and edited by
petitioners in Florida and published in the National Enquirer, a national magazine
having its largest circulation in California. Petitioners, both residents of Florida,
were served with process by mail in Florida, and, on special appearances, moved
to quash the service of process for lack of personal jurisdiction. The Superior
Court granted the motion on the ground that First Amendment concerns weighed
against an assertion of jurisdiction otherwise proper under the Due Process
Clause of the Fourteenth Amendment. The California Court of Appeal reversed,
holding that a valid basis for jurisdiction existed on the theory that petitioners
intended to, and did, cause tortious injury to respondent in California.
Held:
1. Jurisdiction by appeal does not lie in this Court, but under 28 U.S.C. 2103 the
jurisdictional statement will be treated as a petition for certiorari, which is hereby
granted. Pp. 787-788.
2. Jurisdiction over petitioners in California is proper because of their intentional
conduct in Florida allegedly calculated to cause injury to respondent in
California. Pp. 788-791.
(a) The Due Process Clause permits personal jurisdiction over a defendant in any
State with which the defendant has "certain minimum contacts . . . such that the
maintenance of the suit does not offend `traditional notions of fair play and
substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 . In
judging minimum contacts, a court properly focuses on "the relationship among
the defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186,
204 . P. 788.
(b) Here, California is the focal point both of the allegedly libelous article and of
the harm suffered. Jurisdiction over petitioners is therefore proper in California
based on the "effects" of their Florida conduct in California. Pp. 788-789.
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(c) Petitioners are not charged with mere untargeted negligence, but rather their
intentional, and allegedly tortious, actions were expressly aimed at California.
They wrote and edited an article that they [465 U.S. 783, 784] knew would have
a potentially devastating impact upon respondent, and they knew that the brunt of
that injury would be felt by respondent in the State in which she lives and works
and in which the magazine has its largest circulation. Under these circumstances,
petitioners must "reasonably anticipate being haled into court there" to answer for
the truth of the statements made in the article. Pp. 789-790.
(d) While petitioners' contacts with California are not to be judged according to
their employer's activities there, their status as employees does not insulate them
from jurisdiction, since each defendant's contact with the forum State must be
assessed individually. P. 790.
(e) First Amendment concerns do not enter into the jurisdictional analysis. Such
concerns would needlessly complicate an already imprecise inquiry. Moreover,
the potential chill on protected First Amendment activity stemming from
defamation actions is already taken into account in the constitutional limitations
on the substantive law governing such actions. Pp. 790-791.
138 Cal. App. 3d 128, 187 Cal. Rptr. 825, affirmed.
REHNQUIST, J., delivered the opinion for a unanimous Court.
John G. Kester argued the cause for petitioners. With him on the briefs was
Aubrey M. Daniel III.
Paul S. Ablon argued the cause for respondent. With him on the brief were
Stephen S. Monroe and Richard P. Towne. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Association
of American Publishers, Inc., by R. Bruce Rich; for the Authors League of
America, Inc., by Irwin Karp; and for the Reporters Committee for Freedom of
the Press et al. by George R. Clark, Peter C. Gould, Barry D. Umansky, Harvey
Lipton, Robert C. Lobdell, W. Terry Maguire, Robert D. Sack, Bruce W.
Sanford, J. Laurent Scharff, and Richard M. Schmidt, Jr.
JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Shirley Jones brought suit in California Superior Court claiming that
she had been libeled in an article written and edited by petitioners in Florida. The
article was published in a national magazine with a large circulation in California.
Petitioners were served with process by mail in Florida and caused special
appearances to be entered on their behalf, moving to quash the service of process
for lack of personal [465 U.S. 783, 785] jurisdiction. The Superior Court granted
the motion on the ground that First Amendment concerns weighed against an
assertion of jurisdiction otherwise proper under the Due Process Clause. The
California Court of Appeal reversed, rejecting the suggestion that First
Amendment considerations enter into the jurisdictional analysis. We now affirm.
372
Respondent lives and works in California. She and her husband brought this suit
against the National Enquirer, Inc., its local distributing company, and petitioners
for libel, invasion of privacy, and intentional infliction of emotional harm. The
Enquirer is a Florida corporation with its principal place of business in Florida. It
publishes a national weekly newspaper with a total circulation of over 5 million.
About 600,000 of those copies, almost twice the level of the next highest State,
are sold in California. Respondent's and her husband's claims were based on an
article that appeared in the Enquirer's October 9, 1979, issue. Both the Enquirer
and the distributing company answered the complaint and made no objection to
the jurisdiction of the California court.
Petitioner South is a reporter employed by the Enquirer. He is a resident of
Florida, though he frequently travels to California on business. South wrote the
first draft of the challenged article, and his byline appeared on it. He did most of
his research in Florida, relying on phone calls to sources in California for the
information contained in the article. Shortly before publication, South called
respondent's [465 U.S. 783, 786] home and read to her husband a draft of the
article so as to elicit his comments upon it. Aside from his frequent trips and
phone calls, South has no other relevant contacts with California.
Petitioner Calder is also a Florida resident. He has been to California only twice once, on a pleasure trip, prior to the publication of the article and once after to
testify in an unrelated trial. Calder is president and editor of the Enquirer. He
"oversee[s] just about every function of the Enquirer." App. 24. He reviewed and
approved the initial evaluation of the subject of the article and edited it in its final
form. He also declined to print a retraction requested by respondent. Calder has
no other relevant contacts with California.
In considering petitioners' motion to quash service of process, the Superior Court
surmised that the actions of petitioners in Florida, causing injury to respondent in
California, would ordinarily be sufficient to support an assertion of jurisdiction
over them in California. But the court felt that special solicitude was necessary
because of the potential "chilling effect" on reporters and editors which would
result from requiring them to appear in remote jurisdictions to answer for the
content of articles upon which they worked. The court also noted that
respondent's rights could be "fully satisfied" in her suit against the publisher
without requiring petitioners to appear as parties. The Superior Court, therefore,
granted the motion.
The California Court of Appeal reversed. 138 Cal. App. 3d 128, 187 Cal. Rptr.
825 (1982). The court agreed that neither petitioner's contacts with California
would be sufficient [465 U.S. 783, 787] for an assertion of jurisdiction on a
cause of action unrelated to those contacts. See Perkins v. Benguet Mining Co.,
342 U.S. 437 (1952) (permitting general jurisdiction where defendant's contacts
with the forum were "continuous and systematic"). But the court concluded that a
valid basis for jurisdiction existed on the theory that petitioners intended to, and
did, cause tortious injury to respondent in California. The fact that the actions
causing the effects in California were performed outside the State did not prevent
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the State from asserting jurisdiction over a cause of action arising out of those
effects. The court rejected the Superior Court's conclusion that First Amendment
considerations must be weighed in the scale against jurisdiction.
A timely petition for hearing was denied by the Supreme Court of California.
App. 122. On petitioners' appeal to this Court, probable jurisdiction was
postponed. 460 U.S. 1080 (1983). We conclude that jurisdiction by appeal does
not lie. Kulko v. California Superior Court, 436 U.S. 84, 90 , and n. 4 (1978).
Treating the jurisdictional statement as [465 U.S. 783, 788] a petition for writ of
certiorari, as we are authorized to do, 28 U.S.C. 2103, we hereby grant the
petition.
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution permits personal jurisdiction over a defendant in any State with
which the defendant has "certain minimum contacts . . . such that the maintenance
of the suit does not offend `traditional notions of fair play and substantial justice.'
Milliken v. Meyer, 311 U.S. 457, 463 ." International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945). In judging minimum contacts, a court properly focuses
on "the relationship among the defendant, the forum, and the litigation." Shaffer
v. Heitner, 433 U.S. 186, 204 (1977). See also Rush v. Savchuk, 444 U.S. 320,
332 (1980). The plaintiff's lack of "contacts" will not defeat otherwise proper
jurisdiction, see Keeton v. Hustler Magazine, Inc., ante, at 779-781, but they may
be so manifold as to permit jurisdiction when it would not exist in their absence.
Here, the plaintiff is the focus of the activities of the defendants out of which the
suit arises. See McGee v. International Life Ins. Co., 355 U.S. 220 (1957).
The allegedly libelous story concerned the California activities of a California
resident. It impugned the professionalism of an entertainer whose television
career was centered in California. The article was drawn from California sources,
[465 U.S. 783, 789] and the brunt of the harm, in terms both of respondent's
emotional distress and the injury to her professional reputation, was suffered in
California. In sum, California is the focal point both of the story and of the harm
suffered. Jurisdiction over petitioners is therefore proper in California based on
the "effects" of their Florida conduct in California. World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 -298 (1980); Restatement (Second) of
Conflict of Laws 37 (1971).
Petitioners argue that they are not responsible for the circulation of the article in
California. A reporter and an editor, they claim, have no direct economic stake in
their employer's sales in a distant State. Nor are ordinary employees able to
control their employer's marketing activity. The mere fact that they can "foresee"
that the article will be circulated and have an effect in California is not sufficient
for an assertion of jurisdiction. World-Wide Volkswagen Corp. v. Woodson,
supra, at 295; Rush v. Savchuk, supra, at 328-329. They do not "in effect appoint
the [article their] agent for service of process." World-Wide Volkswagen Corp. v.
Woodson, supra, at 296. Petitioners liken themselves to a welder employed in
Florida who works on a boiler which subsequently explodes in California. Cases
which hold that jurisdiction will be proper over the manufacturer, Buckeye Boiler
374
Co. v. Superior Court, 71 Cal. 2d 893, 458 P.2d 57 (1969); Gray v. American
Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N. E. 2d 761 (1961),
should not be applied to the welder who has no control over and derives no direct
benefit from his employer's sales in that distant State.
Petitioners' analogy does not wash. Whatever the status of their hypothetical
welder, petitioners are not charged with mere untargeted negligence. Rather, their
intentional, and allegedly tortious, actions were expressly aimed at California.
Petitioner South wrote and petitioner Calder edited an article that they knew
would have a potentially devastating impact upon respondent. And they knew
that the brunt of [465 U.S. 783, 790] that injury would be felt by respondent in
the State in which she lives and works and in which the National Enquirer has its
largest circulation. Under the circumstances, petitioners must "reasonably
anticipate being haled into court there" to answer for the truth of the statements
made in their article. World-Wide Volkswagen Corp. v. Woodson, supra, at 297;
Kulko v. California Superior Court, supra, at 97-98; Shaffer v. Heitner, supra, at
216. An individual injured in California need not go to Florida to seek redress
from persons who, though remaining in Florida, knowingly cause the injury in
California.
Petitioners are correct that their contacts with California are not to be judged
according to their employer's activities there. On the other hand, their status as
employees does not somehow insulate them from jurisdiction. Each defendant's
contacts with the forum State must be assessed individually. See Rush v.
Savchuk, supra, at 332 ("The requirements of International Shoe . . . must be met
as to each defendant over whom a state court exercises jurisdiction"). In this case,
petitioners are primary participants in an alleged wrongdoing intentionally
directed at a California resident, and jurisdiction over them is proper on that
basis.
We also reject the suggestion that First Amendment concerns enter into the
jurisdictional analysis. The infusion of such considerations would needlessly
complicate an already imprecise inquiry. Estin v. Estin, 334 U.S. 541, 545
(1948). Morever, the potential chill on protected First Amendment activity
stemming from libel and defamation actions is already taken into account in the
constitutional limitations on the substantive law governing such suits. See New
York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974). To reintroduce those concerns at the jurisdictional stage
would be a form of double counting. We have already declined in other contexts
to grant special procedural protections to defendants in libel and defamation
actions in addition to the constitutional protections [465 U.S. 783, 791]
embodied in the substantive laws. See, e. g., Herbert v. Lando, 441 U.S. 153
(1979) (no First Amendment privilege bars inquiry into editorial process). See
also Hutchinson v. Proxmire, 443 U.S. 111, 120 , n. 9 (1979) (implying that no
special rules apply for summary judgment).
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We hold that jurisdiction over petitioners in California is proper because of their
intentional conduct in Florida calculated to cause injury to respondent in
California. The judgment of the California Court of Appeal is
Affirmed.
376
377
Lectures on the US Legal System
Lecture # 20: Jurisdiction in rem
Jurisdiction in rem is related to suits determining interests in property and
affecting every person related to the object. Quasi in rem jurisdiction is
based on attachment or seizure of property present in the jurisdiction.
However it is not hard to see, as the supreme court observed it in Shaffer
v. Heitner94, the stated distinction between in rem and in personam
proceedings is less than airtight: An action to determine rights to property
affects the rights of people, and an action to impose a personal obligation,
if the judgment is enforced, will affect property. Indeed the purpose of
this proceeding is to compel the defendant to enter a personal appearance,
whereas a direct assertion of personal jurisdiction over the defendant
would violate the Constitution. Restatement (second) comments that such
a proceeding may avoid that a wrong-doer might avoid payment of his
obligations by the expedient of removing his assets to a place where he is
not subject to an in personam suit95. That’s why, the Supreme Court
decided in Schaffner to submit quasi in rem actions to the standards set
forth in International Shoe, ruling that the mere presence of property in a
State does not establish a sufficient relationship between the owner of the
property and the State to support the exercise of jurisdiction. However,
ownership of property in the State is a contact and it may suggest the
presence of other ties.
94
95
433 US 186 (1977).
§ 66.
378
Lectures on the US Legal System
Cases and Materials
SHAFFER v. HEITNER, 433 U.S. 186 (1977)
No. 75-1812.
Argued February 22, 1977
Decided June 24, 1977
Appellee, a nonresident of Delaware, filed a shareholder's derivative suit in a
Delaware Chancery Court, naming as defendants a corporation and its subsidiary,
as well as 28 present or former corporate officers or directors, alleging that the
individual defendants had violated their duties to the corporation by causing it
and its subsidiary to engage in actions (which occurred in Oregon) that resulted in
corporate liability for substantial damages in a private antitrust suit and a large
fine in a criminal contempt action. Simultaneously, appellee, pursuant to Del.
Code Ann., Tit. 10, 366 (1975), filed a motion for sequestration of the Delaware
property of the individual defendants, all nonresidents of Delaware, accompanied
by an affidavit identifying the property to be sequestered as stock, options,
warrants, and various corporate rights of the defendants. A sequestration order
was issued pursuant to which shares and options belonging to 21 defendants
(appellants) were "seized" and "stop transfer" orders were placed on the corporate
books. Appellants entered a special appearance to quash service of process and to
vacate the sequestration order, contending that the ex parte sequestration
procedure did not accord them due process; that the property seized was not
capable of attachment in Delaware; and that they did not have sufficient contacts
with Delaware to sustain jurisdiction of that State's courts under the rule of
International Shoe Co. v. Washington, 326 U.S. 310 . In that case the Court (after
noting that the historical basis of in personam jurisdiction was a court's power
over the defendant's person, making his presence within the court's territorial
jurisdiction a prerequisite to its rendition of a personally binding judgment
against him, Pennoyer v. Neff, 95 U.S. 714 ) held that that power was no longer
the central concern and that "due process requires only that in order to subject a
defendant to a judgment in personam, if he be not present within the territory of
the forum, he have certain minimum contacts with it such that the maintenance of
the suit does not offend `traditional notions of fair play and substantial justice'"
(and thus the focus shifted to the relationship among the defendant, the forum,
and the litigation, rather than the mutually exclusive sovereignty of the States on
which the rules of Pennoyer had rested). The Court of Chancery, rejecting
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Lectures on the US Legal System
appellants' arguments, upheld the 366 procedure [433 U.S. 186, 187] of
compelling the personal appearance of a nonresident defendant to answer and
defend a suit brought against him in a court of equity, which is accomplished by
the appointment of a sequestrator to seize and hold the property of the
nonresident located in Delaware subject to court order, with release of the
property being made upon the defendant's entry of a general appearance. The
court held that the limitation on the purpose and length of time for which
sequestered property is held comported with due process and that the statutory
situs of the stock (under a provision making Delaware the situs of ownership of
the capital stock of all corporations existing under the laws of that State) provided
a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court.
The Delaware Supreme Court affirmed, concluding that International Shoe raised
no constitutional barrier to the sequestration procedure because "jurisdiction
under 366 remains . . . quasi in rem founded on the presence of capital stock [in
Delaware], not on prior contact by defendants with this forum." Held:
1. Whether or not a State can assert jurisdiction over a nonresident must be
evaluated according to the minimum-contacts standard of International Shoe Co.
v. Washington, supra. Pp. 207-212.
(a) In order to justify an exercise of jurisdiction in rem, the basis for jurisdiction
must be sufficient to justify exercising "jurisdiction over the interests of persons
in the thing." The presence of property in a State may bear upon the existence of
jurisdiction by providing contacts among the forum State, the defendant, and the
litigation, as for example, when claims to the property itself are the source of the
underlying controversy between the plaintiff and defendant, where it would be
unusual for the State where the property is located not to have jurisdiction. Pp.
207-208.
(b) But where, as in the instant quasi in rem action, the property now serving as
the basis for state-court jurisdiction is completely unrelated to the plaintiff's cause
of action, the presence of the property alone, i. e., absent other ties among the
defendant, the State, and the litigation, would not support the State's jurisdiction.
Pp. 208-209.
(c) Though the primary rationale for treating the presence of property alone as a
basis for jurisdiction is to prevent a wrongdoer from avoiding payment of his
obligations by removal of his assets to a place where he is not subject to an in
personam suit, that is an insufficient justification for recognizing jurisdiction
without regard to whether the property is in the State for that purpose. Moreover,
the availability of attachment procedures and the protection of the Full Faith and
Credit Clause, also militate against that rationale. Pp. 209-210. [433 U.S. 186,
188]
(d) The fairness standard of International Shoe can be easily applied in the vast
majority of cases. P. 211.
(e) Though jurisdiction based solely on the presence of property in a State has
had a long history, "traditional notions of fair play and substantial justice" can be
380
Jurisdiction in rem
as readily offended by the perpetuation of ancient forms that are no longer
justified as by the adoption of new procedures that do not comport with the basic
values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp, 395
U.S. 337, 340 ; Wolf v. Colorado, 338 U.S. 25, 27 . Pp. 211-212.
2. Delaware's assertion of jurisdiction over appellants, based solely as it is on the
statutory presence of appellants' property in Delaware, violates the Due Process
Clause, which "does not contemplate that a state may make binding a judgment . .
. against an individual or corporate defendant with which the state has no
contacts, ties, or relations." International Shoe, supra, at 319. Pp. 213-217.
(a) Appellants' holdings in the corporation, which are not the subject matter of
this litigation and are unrelated to the underlying cause of action, do not provide
contacts with Delaware sufficient to support jurisdiction of that State's courts
over appellants. P. 213.
(b) Nor is Delaware state-court jurisdiction supported by that State's interest in
supervising the management of a Delaware corporation and defining the
obligations of its officers and directors, since Delaware bases jurisdiction, not on
appellants' status as corporate fiduciaries, but on the presence of their property in
the State. Moreover, sequestration has been available in any suit against a
nonresident whether against corporate fiduciaries or not. Pp. 213-215.
(c) Though it may be appropriate for Delaware law to govern the obligations of
appellants to the corporation and stockholders, this does not mean that appellants
have "purposefully avail[ed themselves] of the privilege of conducting activities
within the forum State," Hanson v. Denckla, 357 U.S. 235, 253 . Appellants, who
were not required to acquire interests in the corporation in order to hold their
positions, did not by acquiring those interests surrender their right to be brought
to judgment in the States in which they had "minimum contacts." Pp. 215-216.
361 A. 2d 225, reversed.
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J.,
and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined, and in Parts
I-III of which BRENNAN, J., joined. POWELL, J., filed a concurring opinion,
post, p. 217. STEVENS, J., filed an opinion concurring in the [433 U.S. 186, 189]
judgment, post, p. 217. BRENNAN, J., filed an opinion concurring in part and
dissenting in part, post, p. 219. REHNQUIST, J., took no part in the consideration
or decision of the case.
John R. Reese argued the cause for appellants. With him on the briefs were
Edmund N. Carpenter II, R. Franklin Balotti, and Lynn H. Pasahow.
Michael F. Maschio argued the cause for appellee. With him on the brief was
Joshua M. Twilley.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
The controversy in this case concerns the constitutionality of a Delaware statute
that allows a court of that State to take jurisdiction of a lawsuit by sequestering
381
Lectures on the US Legal System
any property of the defendant that happens to be located in Delaware. Appellants
contend that the sequestration statute as applied in this case violates the Due
Process Clause of the Fourteenth Amendment both because it permits the state
courts to exercise jurisdiction despite the absence of sufficient contacts among
the defendants, the litigation, and the State of Delaware and because it authorizes
the deprivation of defendants' property without providing adequate procedural
safeguards. We find it necessary to consider only the first of these contentions.
I
Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock
in the Greyhound Corp., a business incorporated under the laws of Delaware with
its principal place of business in Phoenix, Ariz. On May 22, 1974, he filed a
shareholder's derivative suit in the Court of Chancery for New Castle Country,
Del., in which he named as defendants Greyhound, its wholly owned subsidiary
Greyhound Lines, Inc., and 28 present or former officers or directors of one or
[433 U.S. 186, 190] both of the corporations. In essence, Heitner alleged that the
individual defendants had violated their duties to Greyhound by causing it and its
subsidiary to engage in actions that resulted in the corporations being held liable
for substantial damages in a private antitrust suit and a large fine in a criminal
contempt action. The activities which led to these penalties took place in Oregon.
Simultaneously with his complaint, Heitner filed a motion for an order of
sequestration of the Delaware property of the individual defendants pursuant to
Del. Code Ann., Tit. 10, 366 (1975). This motion was accompanied by a
supporting [433 U.S. 186, 191] affidavit of counsel which stated that the
individual defendants were nonresidents of Delaware. The affidavit identified the
property to be sequestered as
"common stock, 3% Second Cumulative Preferenced Stock and stock unit credits
of the Defendant Greyhound Corporation, a Delaware corporation, as well as all
options and all warrants to purchase said stock issued to said individual
Defendants and all contractural [sic] obligations, all rights, debts or credits due or
accrued to or for the benefit of any of the said Defendants under any type of
written agreement, contract or other legal instrument of any kind whatever
between any of the individual Defendants and said corporation."
The requested sequestration order was signed the day the motion was filed.
Pursuant to that order, the sequestrator [433 U.S. 186, 192]
"seized"
approximately 82,000 shares of Greyhound common stock belonging to 19 of the
defendants, and options belonging to another 2 defendants. These seizures were
accomplished by placing "stop transfer" orders or their equivalents on the books
of the Greyhound Corp. So far as the record shows, none of the certificates
representing the seized property was physically present in Delaware. The stock
was considered to be in Delaware, and so subject to seizure, by virtue of Del.
Code Ann., Tit. 8, 169 (1975), which makes Delaware the situs of ownership of
all stock in Delaware corporations.
382
Jurisdiction in rem
All 28 defendants were notified of the initiation of the suit by certified mail
directed to their last known addresses and by publication in a New Castle County
newspaper. The 21 defendants whose property was seized (hereafter referred to as
appellants) responded by entering a special appearance for [433 U.S. 186, 193]
the purpose of moving to quash service of process and to vacate the sequestration
order. They contended that the ex parte sequestration procedure did not accord
them due process of law and that the property seized was not capable of
attachment in Delaware. In addition, appellants asserted that under the rule of
International Shoe Co. v. Washington, 326 U.S. 310 (1945), they did not have
sufficient contacts with Delaware to sustain the jurisdiction of that State's courts.
The Court of Chancery rejected these arguments in a letter opinion which
emphasized the purpose of the Delaware sequestration procedure:
"The primary purpose of `sequestration' as authorized by 10 Del. C. 366 is not to
secure possession of property pending a trial between resident debtors and
creditors on the issue of who has the right to retain it. On the contrary, as here
employed, `sequestration' is a process used to compel the personal appearance of
a nonresident defendant to answer and defend a suit brought against him in a
court of equity. Sands v. Lefcourt Realty Corp., Del. Supr., 117 A. 2d 365 (1955).
It is accomplished by the appointment of a sequestrator by this Court to seize and
hold property of the nonresident located in this State subject to further Court
order. If the defendant enters a general appearance, the sequestered property is
routinely released, unless the plaintiff makes special application to continue its
seizure, in which event the plaintiff has the burden of proof and persuasion." App.
75-76.
This limitation on the purpose and length of time for which sequestered property
is held, the court concluded, rendered inapplicable the due process requirements
enunciated in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes v.
Shevin, 407 U.S. 67 (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600
(1974). App. 75-76, 80, 83-85. The court also found no state-law or federal
constitutional barrier to the sequestrator's reliance on Del. Code Ann., Tit. 8, 169
[433 U.S. 186, 194] (1975). App. 76-79. Finally, the court held that the statutory
Delaware situs of the stock provided a sufficient basis for the exercise of quasi in
rem jurisdiction by a Delaware court. Id., at 85-87.
On appeal, the Delaware Supreme Court affirmed the judgment of the Court of
Chancery. Greyhound Corp. v. Heitner, 361 A. 2d 225 (1976). Most of the
Supreme Court's opinion was devoted to rejecting appellants' contention that the
sequestration procedure is inconsistent with the due process analysis developed in
the Sniadach line of cases. The court based its rejection of that argument in part
on its agreement with the Court of Chancery that the purpose of the sequestration
procedure is to compel the appearance of the defendant, a purpose not involved in
the Sniadach cases. The court also relied on what it considered the ancient origins
of the sequestration procedure and approval of that procedure in the opinions of
this Court, Delaware's interest in asserting jurisdiction to adjudicate claims of
383
Lectures on the US Legal System
mismanagement of a Delaware corporation, and the safeguards for defendants
that it found in the Delaware statute. 361 A. 2d, at 230-236. [433 U.S. 186, 195]
Appellants' claim that the Delaware courts did not have jurisdiction to adjudicate
this action received much more cursory treatment. The court's analysis of the
jurisdictional issue is contained in two paragraphs:
"There are significant constitutional questions at issue here but we say at once
that we do not deem the rule of International Shoe to be one of them. . . . The
reason, of course, is that jurisdiction under 366 remains . . . quasi in rem founded
on the presence of capital stock here, not on prior contact by defendants with this
forum. Under 8 Del. C. 169 the `situs of the ownership of the capital stock of all
corporations existing under the laws of this State . . . [is] in this State,' and that
provides the initial basis for jurisdiction. Delaware may constitutionally establish
situs of such shares here, . . . it has done so and the presence thereof provides the
foundation for 366 in this case. . . . On this issue we agree with the analysis made
and the conclusion reached by Judge Stapleton in U.S. Industries, Inc. v. Gregg,
D. Del., 348 F. Supp. 1004 (1972).
"We hold that seizure of the Greyhound shares is not invalid because plaintiff has
failed to meet the prior contacts tests of International Shoe." Id., at 229.
We noted probable jurisdiction. 429 U.S. 813 . 12 We reverse. [433 U.S. 186,
196]
II
The Delaware courts rejected appellants' jurisdictional challenge by noting that
this suit was brought as a quasi in rem proceeding. Since quasi in rem jurisdiction
is traditionally based on attachment or seizure of property present in the
jurisdiction, not on contacts between the defendant and the State, the courts
considered appellants' claimed lack of contacts with Delaware to be unimportant.
This categorical analysis assumes the continued soundness of the conceptual
structure founded on the century-old case of Pennoyer v. Neff, 95 U.S. 714
(1878).
Pennoyer was an ejectment action brought in federal court under the diversity
jurisdiction. Pennoyer, the defendant in that action, held the land under a deed
purchased in a sheriff's sale conducted to realize on a judgment for attorney's fees
obtained against Neff in a previous action by one Mitchell. At the time of
Mitchell's suit in an Oregon State court, Neff was a nonresident of Oregon. An
Oregon statute allowed service by publication on nonresidents who had property
in the State, and Mitchell had used that procedure to bring Neff [433 U.S. 186,
197] before the court. The United States Circuit Court for the District of
Oregon, in which Neff brought his ejectment action, refused to recognize the
validity of the judgment against Neff in Mitchell's suit, and accordingly awarded
the land to Neff. This Court affirmed.
Mr. Justice Field's opinion for the Court focused on the territorial limits of the
States' judicial powers. Although recognizing that the States are not truly
384
Jurisdiction in rem
independent sovereigns, Mr. Justice Field found that their jurisdiction was
defined by the "principles of public law" that regulate the relationships among
independent nations. The first of those principles was "that every State possesses
exclusive jurisdiction and sovereignty over persons and property within its
territory." The second was "that no State can exercise direct jurisdiction and
authority over persons or property without its territory." Id., at 722. Thus, "in
virtue of the State's jurisdiction over the property of the non-resident situated
within its limits," the state courts "can inquire into that non-resident's obligations
to its own citizens . . . to the extent necessary to control the disposition of the
property." Id., at 723. The Court recognized that if the conclusions of that inquiry
were adverse to the nonresident property owner, his interest in the property would
be affected. Ibid. Similarly, if the defendant consented to the jurisdiction of the
state courts or was personally served within the State, a judgment could affect his
interest in property outside the State. But any attempt "directly" to assert
extraterritorial jurisdiction over persons or property would offend sister States
and exceed the inherent limits of the State's power. A judgment resulting from
such an attempt, Mr. Justice Field concluded, was not only unenforceable [433
U.S. 186, 198] in other States, but was also void in the rendering State because
it had been obtained in violation of the Due Process Clause of the Fourteenth
Amendment. Id., at 732-733. See also, e. g., Freeman v. Alderson, 119 U.S. 185,
187 -188 (1886).
This analysis led to the conclusion that Mitchell's judgment against Neff could
not be validly based on the State's power over persons within its borders, because
Neff had not been personally served in Oregon, nor had he consensually appeared
before the Oregon court. The Court reasoned that even if Neff had received
personal notice of the action, service of process outside the State would have
been ineffectual since the State's power was limited by its territorial boundaries.
Moreover, the Court held, the action could not be sustained on the basis of the
State's power over property within its borders because that property had not been
brought before the court by attachment or any other procedure prior to judgment.
Since the judgment which authorized the sheriff's sale was therefore invalid, the
sale transferred no title. Neff regained his land.
From our perspective, the importance of Pennoyer is not its result, but the fact
that its principles and corollaries derived from them became the basic elements of
the constitutional [433 U.S. 186, 199]
doctrine governing state-court
jurisdiction. See, e. g., Hazard, A General Theory of State-Court Jurisdiction,
1965 Sup. Ct. Rev. 241 (hereafter Hazard). As we have noted, under Pennoyer
state authority to adjudicate was based on the jurisdiction's power over either
persons or property. This fundamental concept is embodied in the very
vocabulary which we use to describe judgments. If a court's jurisdiction is based
on its authority over the defendant's person, the action and judgment are
denominated "in personam" and can impose a personal obligation on the
defendant in favor of the plaintiff. If jurisdiction is based on the court's power
over property within its territory, the action is called "in rem" or "quasi in rem."
The effect of a judgment in such a case is limited to the property that supports
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jurisdiction and does not impose a personal liability on the property owner, since
he is not before the court. In Pennoyer's terms, the owner is affected only
"indirectly" by an in rem judgment adverse to his interest in the property subject
to the court's disposition.
By concluding that "[t]he authority of every tribunal is necessarily restricted by
the territorial limits of the State in which it is established," 95 U.S., at 720 ,
Pennoyer sharply limited the availability of in personam jurisdiction over
defendants not resident in the forum State. If a nonresident defendant could not
be found in a State, he could not be sued there. On the other hand, since the State
in which property [433 U.S. 186, 200] was located was considered to have
exclusive sovereignty over that property, in rem actions could proceed regardless
of the owner's location. Indeed, since a State's process could not reach beyond its
borders, this Court held after Pennoyer that due process did not require any effort
to give a property owner personal notice that his property was involved in an in
rem proceeding. See, e. g., Ballard v. Hunter, 204 U.S. 241 (1907); Arndt v.
Griggs, 134 U.S. 316 (1890); Huling v. Kaw Valley R. Co., 130 U.S. 559 (1889).
The Pennoyer rules generally favored nonresident defendants by making them
harder to sue. This advantage was reduced, however, by the ability of a resident
plaintiff to satisfy a claim against a nonresident defendant by bringing into court
any property of the defendant located in the plaintiff's State. See, e. g., Zammit,
Quasi-In-Rem Jurisdiction: Outmoded and Unconstitutional?, 49 St. John's L.
Rev. 668, 670 (1975). For example, in the well-known case of Harris v. Balk, 198
U.S. 215 (1905), Epstein, a resident of Maryland, had a claim against Balk, a
resident of North Carolina. Harris, another North Carolina resident, owed money
to Balk. When Harris happened to visit Maryland, Epstein garnished his debt to
Balk. Harris did not contest the debt to Balk and paid it to Epstein's North
Carolina attorney. When Balk later sued Harris in North Carolina, this Court held
that the Full Faith and Credit Clause, U.S. Const., Art. IV, 1, required that Harris'
payment to Epstein be treated as a discharge of his debt to Balk. This Court
reasoned that the debt Harris owed Balk was an intangible form of property
belonging to Balk, and that the location of that property traveled with the debtor.
By obtaining personal jurisdiction over Harris, Epstein had "arrested" his debt to
Balk, 198 U.S., at 223 , and brought it into the Maryland court. Under the
structure established by Pennoyer, Epstein was then entitled to proceed against
that debt to vindicate his claim against Balk, even though Balk himself was not
subject to the jurisdiction [433 U.S. 186, 201] of a Maryland tribunal. See also,
e. g., Louisville & N. R. Co. v. Deer, 200 U.S. 176 (1906); Steele v. G. D. Searle
& Co., 483 F.2d 339 (CA5 1973), cert. denied, 415 U.S. 958 (1974).
Pennoyer itself recognized that its rigid categories, even as blurred by the kind of
action typified by Harris, could not accommodate some necessary litigation.
Accordingly, Mr. Justice Field's opinion carefully noted that cases involving the
personal status of the plaintiff, such as divorce actions, could be adjudicated in
the plaintiff's home State even though the defendant could not be served within
that State. 95 U.S., at 733 -735. Similarly, the opinion approved the practice of
considering a foreign corporation doing business in a State to have consented to
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being sued in that State. Id., at 735-736; see Lafayette Ins. Co. v. French, 18
How. 404 (1856). This [433 U.S. 186, 202] basis for in personam jurisdiction
over foreign corporations was later supplemented by the doctrine that a
corporation doing business in a State could be deemed "present" in the State, and
so subject to service of process under the rule of Pennoyer, See, e. g.,
International Harvester Co. v. Kentucky, 234 U.S. 579 (1914); Philadelphia &
Reading R. Co. v. McKibbin, 243 U.S. 264 (1917). See generally Note,
Developments in the Law, State-Court Jurisdiction, 73 Harv. L. Rev. 909, 919923 (1960) (hereafter Developments).
The advent of automobiles, with the concomitant increase in the incidence of
individuals causing injury in States where they were not subject to in personam
actions under Pennoyer, required further moderation of the territorial limits on
jurisdictional power. This modification, like the accommodation to the realities of
interstate corporate activities, was accomplished by use of a legal fiction that left
the conceptual structure established in Pennoyer theoretically unaltered. Cf.
Olberding v. Illinois Central R. Co., 346 U.S. 338, 340 -341 (1953). The fiction
used was that the out-of-state motorist, who it was assumed could be excluded
altogether from the State's highways, had by using those highways appointed a
designated state official as his agent to accept process. See Hess v. Pawloski, 274
U.S. 352 (1927). Since the motorist's "agent" could be personally served within
the State, the state courts could obtain in personam jurisdiction over the
nonresident driver.
The motorists' consent theory was easy to administer since it required only a
finding that the out-of-state driver had used the State's roads. By contrast, both
the fictions of implied consent to service on the part of a foreign corporation and
of corporate presence required a finding that the corporation was "doing
business" in the forum State. Defining the criteria for making that finding and
deciding whether they were met absorbed much judicial energy. See, e. g.,
International Shoe [433 U.S. 186, 203] Co. v. Washington, 326 U.S., at 317 319. While the essentially quantitative tests which emerged from these cases
purported simply to identify circumstances under which presence or consent
could be attributed to the corporation, it became clear that they were in fact
attempting to ascertain "what dealings make it just to subject a foreign
corporation to local suit." Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (CA2
1930) (L. Hand, J.). In International Shoe, we acknowledged that fact.
The question in International Shoe was whether the corporation was subject to the
judicial and taxing jurisdiction of Washington. Mr. Chief Justice Stone's opinion
for the Court began its analysis of that question by noting that the historical basis
of in personam jurisdiction was a court's power over the defendant's person. That
power, however, was no longer the central concern:
"But now that the capias ad respondendum has given way to personal service of
summons or other form of notice, due process requires only that in order to
subject a defendant to a judgment in personam, if he be not present within the
territory of the forum, he have certain minimum contacts with it such that the
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maintenance of the suit does not offend `traditional notions of fair play and
substantial justice.' Milliken v. Meyer, 311 U.S. 457, 463 ." 326 U.S., at 316 .
Thus, the inquiry into the State's jurisdiction over a foreign corporation
appropriately focused not on whether the corporation was "present" but on
whether there have been
"such contacts of the corporation with the state of the forum as make it
reasonable, in the context of our federal system of government, to require the
corporation to defend the particular suit which is brought there." Id., at 317. [433
U.S. 186, 204]
Mechanical or quantitat