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Utah v. Evans
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would obtain relief that directly redresses the injury suffered. We have found standing in similar circumstances. See, e. g., Federal Election ; ; Metropolitan Airports 501 U.S. 2, And related cases in which we have denied standing involved a significantly more speculative likelihood of obtaining ultimate relief. See 565, n. 2 (obtaining ultimate relief "speculative"); We consequently conclude that Utah has standing here, and we have jurisdiction. III Utah rests its statutory claim on a federal sampling statute which reads as follows: "Except for the determination of population for purposes of apportionment of in Congress among the several States, the Secretary shall, if he considers *465 it feasible, authorize the use of the statistical method known as `sampling'" 13 U.S. C. 5. We have previously read this language as forbidding apportionment-related use of "the statistical method known as `sampling.'" Department of 5 U.S. 316, Utah claims that imputation, as practiced by the Census Bureau, is a form of that forbidden "sampling" method. The Government argues that imputation is not "sampling." And it has used a simplified example to help explain why this is so. Imagine a librarian who wishes to determine the total number of books in a library. If the librarian finds a statistically sound way to select a sample (e. g., the books contained on every 10th shelf) and if the librarian then uses a statistically sound method of extrapolating from the part to the whole (e. g., multiplying by 10), then the librarian has determined the total number of books by using the statistical method known as "sampling." If, however, the librarian simply tries to count every book one by one, the librarian has not used sampling. Nor does the latter process suddenly become "sampling" simply because the librarian, finding empty shelf spaces, "imputes" to that empty shelf space the number of books (currently in use) that likely filled themnot even if the librarian goes about the imputation process in a rather technical way, say, by measuring the size of nearby books and dividing the length of each empty shelf space by a number representing the average size of nearby books on the same shelf. This example is relevant here both in the similarities and in the differences that it suggests between sampling and imputation. In both, "`information on a portion of a population is used to infer information on the population as a whole.'" Brief for Appellants 18. And in Utah's view, and that of Justice O'Connor, see post, at 482-483 (opinion concurring in part and dissenting in part), that similarity brings *466 the Census
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and dissenting in part), that similarity brings *466 the Census Bureau imputation process within the relevant statutory phrase. On the other hand, the two processes differ in several critical respects: (1) In respect to the nature of the enterprise, the librarian's sampling represents an overall approach to the counting problem that from the beginning relies on data that will be collected from only a part of the total population, Declaration of Howard Hogan ¶¶ -23, App. 7-9 ; (2) in respect to methodology, the librarian's sampling focuses on using statistically valid sample-selection techniques to determine what data to collect, ¶¶ 29-30, ; Declaration of Joseph Waksberg ¶¶ 6, 10, ; and (3) in respect to the immediate objective, the librarian's sampling seeks immediately to extrapolate the sample's relevant population characteristics to the whole population, Hogan ¶ 30, ; Declaration of David W. Peterson ¶ 8, By way of contrast, the librarian's imputation (1) does not represent an overall approach to the counting problem that will rely on data collected from only a subset of the total population, since it is a method of processing data (giving a value to missing data), not its collection, ¶¶ 21, 29, at 7-8, 261-262; it (2) does not rely upon the same statistical methodology generally used for sample selection, U. S. Dept. of Decennial Statistical Studies Division, Census 2000 Procedures and Operations, Memorandum Series B-17, Feb. 28, 2001, ; Waksberg ¶¶ 6, 10, ; and it (3) has as its immediate objective determining the characteristics of missing individual books, not extrapolating characteristics from the sample to the entire book population, Hogan ¶ 17, at 6-7; Peterson ¶ 9, These same differences distinguish Bureau imputation in the year 2000 census from "the statistical method known as `sampling.'" 13 U.S. C. 5. The nature of the Bureau's *467 enterprise was not the extrapolation of the features of a large population from a small one, but the filling in of missing data as part of an effort to count individuals one by one. But cf. post, at 482-483 (O'Connor, J., concurring in part and dissenting in part) (suggesting the contrary). The Bureau's methodology was not that typically used by statisticians seeking to find a subset that will resemble a whole through the use of artificial, random selection processes; but that used to assure that an individual unit (not a "subset"), chosen nonrandomly, will resemble other individuals (not a "whole") selected by the fortuitous unavailability of data. L. Survey Sampling 26 (65) ("In statistical literature [sampling] is generally synonymous with random sampling"). And the Bureau's immediate objective was
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synonymous with random sampling"). And the Bureau's immediate objective was the filling in of missing data; not extrapolating the characteristics of the "donor" units to an entire population. These differences, whether of degree or of kind, are important enough to place imputation outside the scope of the statute's phrase "the statistical method known as `sampling.'" For one thing, that statutory phraseusing the words "known as" and the quotation marks that surround "sampling"suggests a term of art with a technical meaning. And the technical literature, which we have consequently examined, see Corning Glass contains definitions that focus upon differences of the sort discussed above. One text, for example, says that "[s]urvey sampling, or population sampling, deals with methods for selecting and observing a part (sample) of the population in order to make inferences about the whole population." Another says that "sample, as it is used in the [statistics] literature means a subset of the population that is used to gain information about the entire population," G. Henry, Practical Sampling 11 (90), or, in other words, "a model of the population," Yet another says that a "sampling method is a method of selecting a fraction of the population in a way that the selected sample *468 represents the population." P. Sukhatme, Sampling Theory of Surveys with Applications 1 (54). A 53 treatise, to which Utah refers, says that a broader definition of "sample" is imprecise, adding that the term "should be reserved for a set of units which has been selected in the belief that it will be representative of the whole aggregate." F. Sampling Methods for Censuses and Surveys 1.1, p. 2 (2d rev. ed. 53) (hereinafter ). And Census Bureau documents state that "professional statisticians" reserve the term "`sample' for instances when the selection of the smaller population is based on the methodology of their science." Report to CongressThe Plan for Census 2000, p. 23 (hereinafter Report to Congress). These definitions apply easily and naturally to what we called "sampling" in the librarian example, given its nature, methods, and immediate objectives. These definitions do not apply to the librarian's or to the Bureau's imputation processat least not without considerable linguistic squeezing. For another thing, Bureau statisticians testified in the District Court that, in their expert opinion, Bureau imputation was not "sampling" as that term is used in the field of statistics. Hogan ¶¶ 18-30, App. 7-262; Waksberg ¶¶ 6-10, Their reasons parallel those to which we have referred. Although Utah presented other experts who testified to the contrary, Utah has not relied upon their testimony or expert knowledge here. Insofar
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not relied upon their testimony or expert knowledge here. Insofar as the parties now rely on expert opinion, that opinion uniformly favors the Government. Further, the history of the sampling statute suggests that Congress did not have imputation in mind in 58 when it wrote that law. At that time, the Bureau already was engaged in what it called "sampling," a practice that then involved asking a small subset of the population subsidiary census questions about, say, automobiles, telephones, or dishwashers, *469 and extrapolating the responses to produce national figures about, say, automobile ownership. See M. Anderson, The American Census: A Social History 9 (discussing "long form" survey, sent in 50 to about 20% of population). The Secretary of asked Congress to enact a law that would make clear the Bureau had legal authority to engage in this "practice." Amendment of Title 13, United States Code, Relating to Census: Hearing on H. R. 7911 before the House Committee on the Post Office and Civil Service, 85th Cong., 1st Sess., 7 (57) (Statement of Purpose and Need) (Secretary of describing Bureau's ability to obtain "some information efficiently through a sample survey rather than a complete enumeration basis"). The Secretary did not object to a legislative restriction that would, in effect, deny the Bureau sampling authority in the area of apportionment. And Congress, in part to help achieve cost savings, responded with the present statute which provides that limited authority. See S. Rep. No. 698, 85th Cong., 1st Sess., 3 (57) ("[P]roper use of sampling methods can result in substantial economies in census taking"); S. Rep. No. 94-16, p. 5 ("use of sampling procedures and surveys urged for the sake of economy and reducing respondent burden"). This background suggests that the "sampling" to which the statute refers is the practice that the Secretary called "sampling" at the timefor that is what Congress considered. And it suggests that the statutory word does not apply to imputationfor that is a matter that Congress did not consider. Indeed, had the Secretary believed that Congress intended to restrict the Bureau's authority to engage in apportionment-related imputation, he would likely have expressed an objection, for the Bureau had used such imputation in the past and intended to use it in the future. Hogan ¶ 39, App. 266-267. Moreover, the Bureau's rationale for using sampling was quite different from its rationale for using imputation. An advance plan to sample a subset saves *470 money, for it restricts a survey's potential scope. Bureau imputation does not save money, for the Bureau turns to imputation only after ordinary questionnaires and
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the Bureau turns to imputation only after ordinary questionnaires and interviews have failed. Rather, imputation reflects a Bureau decision to spend at least a small amount of additional money in order to avoid placing the figure "zero" next to a listed address when it is possible to do better. See ¶ 34, Finally, Utah provides no satisfactory alternative account of the meaning of the phrase "the statistical method known as `sampling.'" Its arguments suggest that the phrase should apply to any use of statistics that would help the Bureau extrapolate from items about which the Bureau knows to other items, the characteristics of which it does not know. Brief for Appellants 9. But that definitional view would include within the statutory phrase matters that could not possibly belong therefor example, the use of statistics to determine whether it is better to ask a postal worker or a neighbor about whether an apparently empty house is occupied. And it would come close to forbidding the use of all statistics, not simply one statistical method ("sampling"). Utah's express definitional statementthat "sampling" occurs whenever "information on a portion of a population is used to infer information on the population as a whole" suffers from a similar defect. Indeed, it is even broader, coming close to a description of the mental process of inference itself. While the Census Bureau and at least one treatise have used somewhat similar language to define "sampling," they have immediately added the qualification that such is the "layman's" view, while professional statisticians, when speaking technically, speak more narrowly and more precisely. Report to Congress 23; 1-2. Utah makes several additional arguments. It says that in House of the Court found that two methods, virtually identical to imputation, constituted "sampling." *471 It says that the Bureau, if authorized to engage in imputation, might engage in wide-scale substitution of imputation for person-by-person counting. And it says that, in any event, the Bureau's methods for imputing status and occupancy, see are inaccurate. In our view, however, House of is distinguishable. The two instances of Bureau methodology at issue there satisfied the technical criteria for "sampling" in ways that the imputation here at issue does not. In both instances, the Bureau planned at the outset to produce a statistically sound sample from which it extrapolated characteristics of an entire population. In the first instance it did so by selecting census blocks randomly from which to extrapolate global census figures in order to compare (and adjust) the accuracy of figures obtained in traditional ways with figures obtained through statistical sampling. 5 U.S., at 3-326.
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with figures obtained through statistical sampling. 5 U.S., at 3-326. In the second instance it used a sample drawn from questionnaire nonrespondents in particular census tracts in order to obtain the population figure for the entire tract. The "sampling" in the second instance more closely resembles the present effort to fill in missing data, for the "sample" of nonrespondents was large (about 20% of the tract) compared to the total nonresponding population (about 30% of the entire tract). at 324-3. Nonetheless, we believe that the Bureau's view of the enterprise as sampling, the deliberate decision taken in advance to find an appropriate sample, the sampling methods used to do so, the immediate objective of determining through extrapolation the size of the entire nonresponding population, and the quantitative figures at issue (10% of the tract there; 0.4% here), all taken together, distinguish itin degree if not in kindfrom the imputation here at issue. Nor are Utah's other two arguments convincing. As to the first, Utah has not claimed that the Bureau has used imputation to manipulate results. It has not explained how census-taking that fills in ultimate blanks through imputation *472 is more susceptible to manipulation than census-taking that fills in ultimate blanks with a zero. And given the advance uncertainties as to which States imputation might favor, manipulation would seem difficult to arrange. If Justice O'Connor's speculation comes to passthat the Bureau would decide, having litigated this case and utilized imputation in a subsequent census, to forgo the benefits of that process because of its resultsthe Court can address the problem at that time. As to the second, Utah's claim concerns the nature of the imputation method, not its accuracy as appliedthough we add that neither the record, see infra, at 477, nor Justice O'Connor's opinion, see post, at 487-488, gives us any reason to doubt that accuracy here. We note one further legal hurdle that Utah has failed to overcomethe Bureau's own interpretation of the statute. The Bureau, which recommended this statute to Congress, has consistently, and for many years, interpreted the statute as permitting imputation. Hogan ¶¶ 39, 41, 43, 46, 47, 52, App. 266-273. Congress, aware of this interpretation, has enacted related legislation without changing the statute. See, e. g., Census Address List Improvement Act of 94, Stat. 4393; Foreign Direct Investment and International Financial Data Improvements Act of 90, Stat. 2344; Act of Oct. 14, 86, Stat. 12. (Indeed, the Bureau told Congress of its planned use of imputation in the year 2000 census without meeting objection.) And the statute itself delegates to the Secretary the
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objection.) And the statute itself delegates to the Secretary the authority to conduct the decennial census "in such form and content as he may determine." 13 U.S. C. 141(a). Although we do not rely on it here, under these circumstances we would grant legal deference to the Bureau's own legal conclusion were that deference to make the difference. Chevron U. S. A. 8-845 In sum, imputation differs from sampling in respect to the nature of the enterprise, the methodology used, and the immediate *473 objective sought. And as we have explained, these differences are of both kind and degree. That the differences may be of degree does not lessen their significance where we are charged with interpreting statutory language and we are faced with arguments that suggest that it covers even the most ordinary of inferences. Since that cannot be so, we have found the keys to understanding the operative phrase in its history: the fact that the Bureau itself believed imputation to stand outside the prohibition it requested Congress pass, the fact that the Bureau has consistently used imputation, and the fact that Congress, on notice of that use, has not suggested otherwise. For these reasons, we conclude that the statutory phrase "the statistical method known as `sampling'" does not cover the Bureau's use of imputation. IV Utah's constitutional claim rests upon the words "actual Enumeration" as those words appear in the Constitution's Census Clause. That Clause, as changed after the Civil War (in ways that do not matter here), reads as follows: " and direct Taxes shall be apportioned among the several States according to their respective Numbers counting the whole number of persons in each State. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, in such Manner as they shall by Law direct." Art. I, 2, cl. 3 (emphasis added); see also Amdt. 14, 2. Utah argues that the words "actual Enumeration" require the Census Bureau to seek out each individual. In doing so, the Bureau may rely upon documentary evidence that an individual exists, say, a postal return, or upon eyewitness evidence, say, by a census taker. It can fill in missing data through the use of testimonial reports, including secondhand or thirdhand reports, made by a family member, neighbor, *474 or friend. But it may not rely upon imputation, which fills in data by assuming, for example, that an unknown house has the same population characteristics as those of the closest similar house nearby. We do not believe the Constitution makes the distinction
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nearby. We do not believe the Constitution makes the distinction that Utah seeks to draw. The Constitution's text does not specify any such limitation. Rather, the text uses a general word, "enumeration," that refers to a counting process without describing the count's methodological details. The textual word "actual" refers in context to the enumeration that will be used for apportioning the Third Congress, succinctly clarifying the fact that the constitutionally described basis for apportionment will not apply to the First and Second Congresses. The final part of the sentence says that the "actual Enumeration" shall take place "in such Manner as" Congress itself "shall by Law direct," thereby suggesting the breadth of congressional methodological authority, rather than its limitation. See, e. g., The history of the constitutional phrase supports our understanding of the text. The Convention sent to its Committee of Detail a draft stating that Congress was to "regulate the number of representatives by the number of inhabitants, which number shall be taken in such manner as [Congress] shall direct." 2 M. Farrand, Records of the Federal Convention of 1787, pp. 178, 182-183 (rev. ed. 66) (hereinafter Farrand). After making minor, here irrelevant, changes, the Committee of Detail sent the draft to the Committee of Style, which, in revising the language, added the words "actual Enumeration." Although not dispositive, this strongly suggests a similar meaning, for the Committee of Style "had no authority from the Convention to alter the meaning" of the draft Constitution submitted for its review and revision. (69); see 2 Farrand 553; see also (93). *475 Hence, the Framers would have intended the current phrase, "the actual Enumeration shall be made in such Manner as [Congress] shall by Law direct," as the substantive equivalent of the draft phrase, "which number [of inhabitants] shall be taken in such manner as [Congress] shall direct." 2 Farrand 183. And the Committee of Style's phrase offers no linguistic temptation to limit census methodology in the manner that Utah proposes. Moreover, both phrases served to distinguish the census from the process of apportionment for the first Congress. Read in conjunction with the proceedings of the Constitutional Convention, the text of Article I makes clear that the original allocation of seats in the House was based on a kind of "conjectur[e]," 1 in contrast to the deliberately taken count that was ordered for the future. U. S. Const., Art. I, 2, cl. 3; 1 Farrand 602; 2 ; 2 The Founders' Constitution 135-136, 139 (P. Kurland & R. Lerner eds. 87) (hereinafter Kurland & Lerner); see also Department of and n. 15;
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Kurland & Lerner); see also Department of and n. 15; post, 8 500 (Thomas, J., concurring in part and dissenting in part) (describing colonial estimates). What was important was that contrastrather than the particular phrase used to describe the new process. Contemporaneous general usage of the word "enumeration" adds further support. Late-18th-century dictionaries define the word simply as an "act of numbering or counting over," without reference to counting methodology. 1 S. Johnson, A Dictionary of the English Language 658 (4th rev. ed. 1773); N. Bailey, An Etymological English Dictionary (26th ed. 1789) ("numbering or summing up"); see also Webster's Third New International Dictionary 759 (61 ed.) ("the act of counting," "a count of something (as a population)"). Utah's strongest evidence, a letter from George contrasting a population "estimate" with a "census" or "enumeration," does not demonstrate the contrary, for one can indeed contrast, say, a rough estimate with an *476 enumeration, without intending to encompass in the former anything like the Bureau's use of imputation to fill gaps or clarify confused information about individuals. 31 Writings of George 329 (J. Fitzpatrick ed. 31); see 8 Writings of Thomas Jefferson 236 (A. Lipscomb ed. 03) (comparing the "actual returns" with "conjectures"); 1 Farrand 602; 2 ; Kurland & Lerner 135-136. And the evidence Justice Thomas sets forth, post, 8-500 (opinion concurring in part and dissenting in part), demonstrates the same. The kinds of estimates to which his sources refer are those based on "the number of taxable polls, or the number of the militia." Post, 4 (internal quotation marks omitted). Such sources show nothing other than that "enumeration" may be "incompatible (or at least arguably incompatible) with gross statistical estimates," House of 5 U. S., but such "gross statistical estimates" are not at stake here. Contemporaneous legal documents do not use the term "enumeration" in any specialized way. The Constitution itself, in a later article, refers to the words "actual Enumeration" as meaning "Census or Enumeration," Art. I, 9, cl. 4, thereby indicating that it did not intend the term "actual Enumeration" as a term of art requiring, say, contact (directly or through third parties) between a census taker and each enumerated individual. The First Census Act uses the term "enumeration" almost interchangeably with the phrase "cause the number of the inhabitants to be taken." And the marshals who implemented that Act did not try to contact each individual personally, as they were required only to report the names of all heads of households. Act of Mar. 1, 1790, ch. 2, 1, Cf. House of (noting that the Census Acts
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2, 1, Cf. House of (noting that the Census Acts of 1810 through 50 required census workers to "visit each home in person"); see also post, at 504 (Thomas, J., concurring in part and dissenting in part). *477 Of course, this last limitation suggests that the Framers expected census enumerators to seek to reach each individual household. And insofar as statistical methods substitute for any such effort, it may be argued that the Framers did not believe that the Constitution authorized their use. See House of But we need not decide this matter here, for we do not deal with the substitution of statistical methods for efforts to reach households and enumerate each individual. Here the Census Bureau's method is used sparingly only after it has exhausted its efforts to reach each individual, and it does not differ in principle from other efforts used since 1800 to determine the number of missing persons. Census takers have long asked heads of households, "neighbors, landlords, postal workers, or other proxies" about the number of inhabitants in a particular place, Hogan ¶ 11, App. 3. Such reliance on hearsay need be no more accurate, is no less inferential, and rests upon no more of an individualized effort for its inferences than the Bureau's method of imputation. Nor can Utah draw support from a consideration of the basic purposes of the Census Clause. That Clause reflects several important constitutional determinations: that comparative state political power in the House would reflect comparative population, not comparative wealth; that comparative power would shift every 10 years to reflect population changes; that federal tax authority would rest upon the same base; and that Congress, not the States, would determine the manner of conducting the census. See (64); 1 Farrand 35-36, 6-, 540-5, 559-560, 571, 578-588, 591-597, ; 2 ; Kurland & Lerner 86-144; see The Federalist No. 54, pp. 336-341 (C. Rossiter ed. 61) (J. Madison); No. 55, 1-350 (J. Madison); No. 58, at 356-361 (J. Madison); 31 Writings of George These basic determinations reflect the fundamental nature *478 of the Framers' concerns. Insofar as Justice Thomas proves that the Framers chose to use population, rather than wealth or a combination of the two, as the basis for representation, post, at 500-503, we agree with him. What he does not show, however, is that, in order to avoid bias or for other reasons, they prescribed, or meant to prescribe, the precise method by which Congress was to determine the population. And he cannot show the latter because, for the most part, the choice to base representation on population,
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the most part, the choice to base representation on population, like the other fundamental choices the Framers made, are matters of general principle that do not directly help determine the issue of detailed methodology before us. Declaration of Jack N. Rakove in Department of O. T. 98, No. 98-404, p. 387 ("What was at issue were fundamental principles of representation itself not the secondary matter of exactly how census data was [sic] to be compiled"). Nonetheless, certain basic constitutional choices may prove relevant. The decisions, for example, to use population rather than wealth, to tie taxes and representation together, to insist upon periodic recounts, and to take from the States the power to determine methodology all suggest a strong constitutional interest in accuracy. And an interest in accuracy here favors the Bureau. That is because, as we have said, the Bureau uses imputation only as a last resort after other methods have failed. In such instances, the Bureau's only choice is to disregard the information it has, using a figure of zero, or to use imputation in an effort to achieve greater accuracy. And Bureau information provided in the District Court suggests that those efforts have succeeded. U. S. Dept. of Economics and Statistics Admin., Census 2000 Informational Memorandum No. 110, App. 445 (concluding that postcensus research confirms that imputation appropriately included individuals in the census who would otherwise have been excluded). *479 Of course, the Framers did not consider the imputation process. At the time they wrote the Constitution "statisticks" referred to "`a statement or view of the civil condition of a people,'" not the complex mathematical discipline it has become. P. Cohen, A Calculating People 150-151 (82). Yet, however unaware the Framers might have been of specific future census needs, say, of automobiles for transport or of computers for calculation, they fully understood that those future needs might differ dramatically from those of their own times. And they were optimists who might not have been surprised to learn that a year 2000 census of the Nation that they founded required "processed data for over 120 million households, including over 147 million paper questionnaires and 1.5 billion pages of printed material." Hogan ¶ 8, App. 1. Consequently, they did not write detailed census methodology into the Constitution. As we have said, we need not decide here the precise methodological limits foreseen by the Census Clause. We need say only that in this instance, where all efforts have been made to reach every household, where the methods used consist not of statistical sampling but of inference, where that inference involves
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of statistical sampling but of inference, where that inference involves a tiny percent of the population, where the alternative is to make a far less accurate assessment of the population, and where consequently manipulation of the method is highly unlikely, those limits are not exceeded. For these reasons the judgment of the District Court is Affirmed. Justice O'Connor, concurring in part and dissenting in part. In the year 2000 census, the Census Bureau used the statistical technique known as "hot-deck imputation" to calculate the state population totals that were used to apportion congressional While I agree with the Court's general description of the imputation process, its conclusion that the appellants have standing to challenge *480 its use, and its conclusion that we otherwise have jurisdiction to consider that challenge, I would find that the Bureau's use of imputation constituted a form of sampling and thus was prohibited by 5 of the Census Act, 13 U.S. C. 1 et seq. Therefore, while I concur in Parts I and II of the majority's opinion, I respectfully dissent from Part III and have no occasion to decide whether the Constitution prohibits imputation, which the majority addresses in Part IV. I To conduct the year 2000 census, the Census Bureau (Bureau) first created a master address file that attempted to list every residential housing unit in the United States. See U. S. Dept. of Economics and Statistics Admin., Census 2000 Operational Plan VI (hereinafter Census 2000 Operational Plan). The Bureau then conducted a survey of every address on that list, primarily through the use of mail-back questionnaires. See at IX.A to IX.E; ante, at 457. As relevant here, these questionnaires requested the name of each person living at a given address. See Census 2000 Operational Plan V.B. Because not every address returned a questionnaire, the Bureau had its enumerators attempt to contact nonresponding addresses up to six times by phone or in person in an effort to obtain population information for each address. See Declaration of Howard Hogan ¶ 73, App. 285 ; Census 2000 Operational Plan IX.G. This was known as "nonresponse followup." Also during this followup procedure, addresses that appeared vacant were marked as such while addresses determined to be nonexistent were noted for later deletion. See Hogan ¶¶ 69, 73, App. 283, 285. When all followup procedures were completed, the Bureau still lacked population information for approximately 0.4% of the addresses on the master address list because the Bureau had been unable to classify them as either "occupied, vacant, or nonexistent." 8. Additionally, the *481 Bureau lacked household size information for
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8. Additionally, the *481 Bureau lacked household size information for approximately 0.2% of addresses that were classified as occupied. See at 1. At this point, the Bureau employed the statistical technique known as "hot-deck imputation." For each unsuccessfully enumerated address, the Bureau imputed population data by copying corresponding data from a "`donor'" address. Ante, The donor address was the "`geographically closest neighbor of the same type (i. e., apartment or single-family dwelling) that did not return a census questionnaire' by mail." What this means is that donor addresses were selected only from addresses that had been personally surveyed by the Bureau's enumerators, primarily through the nonresponse followup procedure described above. See App. 156. After imputation was completed, every address on the master address list was associated with a household size number that had been determined either by imputation or by enumeration (although that number was zero for addresses ultimately classified as vacant or nonexistent). The Bureau used the imputation-adjusted data to calculate state population totals. Ante, Because these totals were used to determine the apportionment of congressional ib we must determine whether the Bureau's use of imputation constituted a form of sampling. If it did, it was prohibited by 5 of the Census Act, 13 U.S. C. 1 et seq. See Department of 5 U.S. 316, II As initially enacted, 5 provided that "[e]xcept for the determination of population for apportionment purposes, the Secretary [of ] may, where he deems it appropriate, authorize the use of the statistical method known as `sampling' in carrying out the provisions of this title." 13 U.S. C. 5 (70 ed.). As relevant here, Congress replaced *482 "may, where he deems it appropriate" with "shall, if he considers it feasible" when it amended 5 in 76. Stat. 2464. In House of we found that this amended language "might reasonably be read as either permissive or prohibitive with regard to the use of sampling for apportionment purposes." 5 U.S., at 339. Even so, we held that 5 maintained the prohibition on sampling with respect to apportionment given the "broader context" of "over 200 years during which federal statutes [had] prohibited the use of statistical sampling where apportionment [was] concerned." With respect to 5, then, the only question is whether "hot-deck imputation" is a form of sampling. To answer this question, I begin with the definition of sampling the Bureau provided to Congress in connection with the year 2000 census: "In our common experience, `sampling' occurs whenever the information on a portion of a population is used to infer information on the population as a whole[,] [although]
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to infer information on the population as a whole[,] [although] [a]mong professional statisticians, the term `sample' is reserved for instances when the selection of the smaller population is based on the methodology of their science." Report to CongressThe Plan for Census 2000, p. 23 Under this definition, the Bureau's use of imputation was a form of sampling. The Bureau used a predefined, deterministic method to select a portion of the population and then used that portion of the population to estimate unknown information about the overall population. The Bureau's imputation process first selected a group of "donor" addresses, one for each address that had not been successfully enumerated. This donor group was a subset of the overall population. Indeed, the donor group was actually a subset of a subset of the population because it was selected from only those addresses that had not returned an initial questionnaire *483 but were successfully enumerated through other means. This highlights the Bureau's reliance on a selected portion of collected data. Next, the Bureau used the population of the donor group as a direct estimate of the number of people who had not been successfully enumerated. This estimate related to the "population as a whole" because it was an estimate of the overall number of people in the population who had not responded (or had not provided a consistent response, see ante, at 457) to the Bureau's survey efforts. See, e. g., F. Sampling Methods for Censuses and Surveys 64, 130 (2d rev. ed. 53) (describing the use of sampling to estimate survey nonresponse); ante, at 471 (describing the sampling at issue in House of as one for estimating nonresponse). Because the imputation process selected a portion of the population to estimate the number of people who had not been successfully enumerated, the process constituted a form of sampling. To counter this conclusion, the majority contends that the Bureau's use of imputation differs from sampling in several different ways. First, the majority argues that the Bureau's use of imputation differs quantitatively from other forms of sampling, suggesting that estimating nonresponse is not sampling when the amount of nonresponse is very small. See ante, at 471 (contrasting the use of sampling to estimate a 10% level of nonresponse with the use of imputation to estimate a 0.4% level of nonresponse). But the majority provides no statistical basis to suggest that sampling is confined to "large" estimates. Moreover, we have already decided that the extent of the Bureau's reliance on sampling is irrelevant when we held that 5 prohibits sampling for apportionment purposes regardless of whether
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that 5 prohibits sampling for apportionment purposes regardless of whether it is used as a "`substitute'" for or "` supplement'" to a traditional enumeration. House of at 3. Indeed, the majority more generally acknowledges that the Bureau's reliance on imputation may be distinguishable *484 only in degree from other forms of sampling. See ante, at 471 (stating that the sampling at issue in House of differs "in degree if not in kind" from the imputation at issue here). But the majority provides no statistical basis for claiming a difference of degree matters to the question of what constitutes sampling, nor does it explain how a meaningful line between sampling and nonsampling could be drawn on such a basis. Second, the majority contends that imputation is not sampling because the sample selection method used by the Bureau does not look like "typica[l]," ante, at 467, selection methods in terms of when or how the relevant sample is selected. With respect to when a sample is selected, the majority contends that imputation is not sampling because it occurs after all data have been collected. See ante, at 466. This presumes that one cannot sample from already-collected data. But sampling from collected data is a recognized form of sampling, even when the collected data result from an attempt to survey the entire population. See With respect to how a sample is selected, the majority argues that imputation does not look like methods employed "to find a subset that will resemble a whole through the use of artificial, random selection processes." Ante, at 467. But the Bureau's "nearest neighbor" imputation process is just as artificial as any other form of nonrandom selection, and it is beyond dispute that nonrandom selection methods including those that produce nonrepresentative samples may be used for sampling. See, e. g., W. Hendricks, Mathematical Theory of Sampling 239-241 (56); P. Sukhatme, Sampling Theory of Surveys with Applications 10 (54); F. Stephan, History of the Uses of Modern Sampling Procedures, 43 J. Am. Statistical Assn. 12, 21 (48) (all indicating that nonrandom selection methods may be used for sampling); see also ; R. Jessen, Statistical Survey Techniques 16 (78); W. Deming, Sample Design in *485 Business Research 32 (60) (together indicating that the selection of nonrepresentative or "biased" samples may be permissible, preferred, or even deliberate). Finally, even if random and unbiased selection methods were assumed to be more accurate than other methods of sampling, it would make little sense to construe 5 as prohibiting only the most accurate forms of sampling. Third, the majority contends that imputation is not sampling
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sampling. Third, the majority contends that imputation is not sampling because the Bureau never meant to engage in sampling. Along these lines, the majority stresses that the Bureau's "overall approach to the counting problem," ante, at 466, did not reflect a "deliberate decision," ante, at 471, to engage in sampling. Instead, according to the majority, the Bureau's "immediate objective was the filling in of missing data," in an effort to ascertain population information on "individual" units, not "extrapolating the characteristics of the `donor' units to an entire population." Ante, at 467. The majority provides no statistical basis for defining sampling in terms of intent or immediate objectives, however, and to do so would allow the Bureau to engage in any form of sampling so long as it was characterized as something else or appeared to serve some nonsampling objective. But that would render hollow the statutory prohibition on sampling for apportionment purposes. The majority allows this to happen, however, by focusing on the Bureau's "immediate objective" of filling in missing data, which overlooks the fact that the Bureau estimated nonresponse using a selected subset of the population and imputation was simply a means to that end. Fourth, the majority contends that some definitions of sampling, if viewed broadly, contain no limiting principle and thus might encompass even "the mental process of inference." Ante, at 470. But recognizing the Bureau's use of imputation as a form of sampling does not require that sampling be read so broadly. Instead, sampling under 5 can be confined to situations where a selected subset of the population *486 has been directly surveyed on a particular attribute and then that subset is used to estimate population characteristics of that same attribute. Such a limitation is neither ill defined nor all encompassing. Apart from the above arguments, which primarily relate to the statistical characterization of imputation, the majority makes several additional arguments. It contends that Congress' use of the term "sampling" should be read narrowly, limited to what "the Secretary called `sampling,' at the time." Ante, at 469. But the statutory prohibition was not written in terms of what the Secretary viewed as sampling, nor is there any reason to think Congress intended the term "sampling" to be read narrowly as a tight restriction on the Bureau's ability to gather data for nonapportionment purposes. Rather, the "purpose [was] to permit the utilization of something less than a complete enumeration, as implied by the word `census,' except with respect to apportionment." H. R. Rep. No. 1043, 85th Cong., 1st Sess., 10 (57) (emphasis added). This suggests "sampling" was
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1st Sess., 10 (57) (emphasis added). This suggests "sampling" was meant in a broad rather than narrow sense. Moreover, because the Bureau's authorization to use sampling for nonapportionment purposes was simultaneously a prohibition on the use of sampling for apportionment purposes, it makes even less sense to construe "sampling" narrowly when viewed as a prohibition given the broader historical context in which 5 marked "the first departure from the requirement that the enumerators collect all census information through personal visits to every household in the Nation." House of 5 U. S., at 336. Finally, even if one were willing to assume that the statutory prohibition should not be read to cover statistical techniques the Bureau had used for apportionment purposes prior to 57, that still would not justify the use of imputation since the Bureau had never before added people to the apportionment count using that process. See Hogan ¶¶ 39, 41, App. 266-268. *487 The majority also notes the possibility of Chevron deference with respect to the scope of the term "sampling." Ante, at 472 ). But the majority ultimately does not rely on this form of deference, ante, at 472, nor does it indicate where the Bureau has provided an interpretation of 5 that would have the "force of law" on this issue. See Additionally, based on the reasons provided by Justice Thomas' partial dissent, I would find that the Bureau's use of imputation to calculate state population totals for apportionment purposes at least raises a difficult constitutional question. This provides a basis to construe 5 as precluding imputation, regardless of whether the Bureau is entitled to any form of deference. See Edward J. DeBartolo The majority downplays the idea that imputation could be used to manipulate census results, arguing that "manipulation would seem difficult to arrange" in light of the "uncertainties as to which States imputation might favor." Ante, at 472. But in every census where imputation would alter the resulting apportionment, the mere decision to impute or not to impute is a source of possible manipulation. While that might be averted if the Bureau were required to use imputation, I do not read the majority's opinion to demand that. Moreover, in the past, we have given deference to the Secretary's decision not to statistically adjust the census, even when a final decision on that matter was not made until after the census was completed. See Finally, the majority suggests that imputation is somehow "better" than making no statistical adjustment at all. Ante, at 470. But no party has cited a study suggesting that *488 imputation improves
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party has cited a study suggesting that *488 imputation improves distributive accuracy, and the Bureau admits that numeric rather than distributive accuracy "drove the process." Hogan ¶ 34, App. 264; see also App. 265 (acknowledging that it may be "impossible to know a priori the effects of a particular census operation on distributive accuracy" and that "[i]n designing Census 2000, the Census Bureau did not reject operations that would improve numeric accuracy even if these operations might affect distributive accuracy negatively " (emphasis added)). I therefore would not assume that imputation necessarily resulted in a "better" census given the recognized importance of distributive accuracy in assessing overall accuracy. See (stating that "a preference for distributive accuracy (even at the expense of some numerical accuracy) would seem to follow from the constitutional purpose of the census, viz., to determine the apportionment of the among the States"). III Because the Bureau used "hot-deck imputation" to make the same statistical inferences it could not make through more transparent reliance on sampling, I would find that the Bureau's use of imputation was a form of sampling and thus was prohibited by 5. I therefore respectfully dissent from Part III of the majority's opinion and have no occasion to decide whether the Constitution prohibits imputation, which the majority addresses in Part IV. For these reasons, I would reverse the judgment of the District Court. Justice Thomas, with whom Justice Kennedy joins, concurring in part and dissenting in part. Conducting a census to count over 200 million people is an enormously complicated and difficult undertaking. To facilitate the task, statisticians have created various methods to supplement the door-to-door inquiries associated with the "actual Enumeration" and "counting [of] the whole number *489 of persons in each State" required by the Constitution. Art. I, 2, cl. 3; Amdt. 14, 2. Today we consider whether 13 U.S. C. 5 prohibits the use of one of these methods hot-deck imputationfor apportionment purposes, and if not, whether its use is permissible under the Constitution. In accordance with our decision in I believe that we have jurisdiction to consider these questions concerning the year 2000 census. For essentially the same reasons given by the Court, I agree that imputation is not prohibited by 13 U.S. C. 5. I cannot agree, however, with the Court's resolution of the constitutional question. The Constitution apportions power among the States based on their respective populations; consequently, changes in population shift the balance of power among them. Mindful of the importance of calculating the population, the Framers chose their language with precision, requiring an "actual Enumeration," U.
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chose their language with precision, requiring an "actual Enumeration," U. S. Const., Art. I, 2, cl. 3. They opted for this language even though they were well aware that estimation methods and inferences could be used to calculate population. If the language of the Census Clause leaves any room for doubt, the historical context, debates accompanying ratification, and subsequent early Census Acts confirm that the use of estimation techniquessuch as "hot-deck imputation," sampling, and the likedo not comply with the Constitution. I The use of the statistical technique known as hot-deck imputation increased the final year 2000 census count by 1,172,144 people, representing 0. percent of the Nation's total population. U. S. Dept. of Economics and Statistics Admin., Census 2000 Informational Memorandum No. 110, App. 443. Utilization of this method in the year 2000 census had important consequences for two States in particular, North Carolina and Utah: North Carolina gained *490 one Representative and Utah lost one Representative as a result of hot-deck imputation. See ante, While the Court has aptly described the process of "hotdeck imputation," several facts about this method are worth noting at the outset. The Census Bureau refers to hot-deck imputation procedures as "estimation." U. S. Dept. of Decennial Statistical Studies Division, Census 2000 Procedures and Operations, Memorandum Series Q-34 (hereinafter Memorandum Series), App. 153, 156. It used this form of "estimation" for three different categories of units: (1) those units classified as occupied but with no population count (household size imputation), (2) those units that are unclassified (either occupied or vacant) but that "we know exist" (occupancy imputation), and (3) those units that are unclassified and are "either occupied, vacant, or delete" (status imputation). Memorandum Series B-17, at 4 5. The "status imputation" category is the most troubling, because, as explained by the Department of it refers to households "for which we know nothing," at 5, and therefore which may not even exist. The Census Bureau explains that "[f]or estimation purposes, six categories are defined" because each of the preceding types of units are divided into two groups: single unit addresses and multiunit addresses. The Bureau calls the six categories "estimation categories," and permits only certain types of units for each category to be used as "donors." The Bureau then uses these donor units, for which data has already been obtained, to impute characteristics to a neighboring unit that falls within the above categories. Whether this "estimation" technique passes constitutional muster depends on an evaluation of the language of the Census Clause and its original understanding.[1] *491 II The Framers constitutionalized the requirement that a
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understanding.[1] *491 II The Framers constitutionalized the requirement that a census be conducted every decade. U. S. Const., Art. I, 2, cl. 3. In so doing, they chose their words with precision. Chief Justice Marshall instructed that "[a]s men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." We should be guided, therefore, by the Census Clause's "original meaning, for `[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.'" (95) (quoting South 9 U.S. 437, (05)). Article I, 2, cl. 3, as modified by 2 of the Fourteenth Amendment, provides: " shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." The Census Clause specifies that this "actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten *492 Years, in such Manner as they shall by Law direct." Art. I, 2, cl. 3.[2] The Constitution describes the process both as "counting the whole numbers of persons" and as an "actual Enumeration." Dictionary definitions contemporaneous with the ratification of the Constitution inform our understanding. "Actual" was defined at the time of the founding as "really done: In Metaphysics, that is actual, or in act, which has a real being or existence, and is opposite to Potential. " N. Bailey, An Universal Etymological English Dictionary (26th ed. 1789); see also T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (defining "actual" as "[r]eally in act, not merely potential; in act, not purely in speculation"). Sheridan defined "[e]numeration" as "[t]he act of numbering or counting over" and "[t]o enumerate" as "to reckon up singly; to count over distinctly." See also 1 S. Johnson, A Dictionary of the English Language 658 (4th rev. ed. 1773) (defining "enumerate" as "[t]o reckon up singly; to count over distinctly; to number"; and "enumeration" as "[t]he act of numbering or counting over; number told out"). "Count" was defined as "to number; to tell."[3] See also 1 N. Webster, An American Dictionary of the English Language (1828) ("To number; to tell or name one by one, or by small numbers, for ascertaining the whole number of units in
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small numbers, for ascertaining the whole number of units in a collection"). As Justice Scalia explained in Department of 5 U.S. 316, dictionary definitions *493 contemporaneous with the founding "demonstrate that an `enumeration' requires an actual counting, and not just an estimation of number." "The notion of counting `singly,' `separately,' `number by number,' `distinctly,' which runs through these definitions is incompatible (or at least arguably incompatible, which is all that needs to be established) with gross statistical estimates."[4] Nor can it be said that these definitions encompass estimates by imputation.[5] In addition, at the time of the founding, "conjecture" and "estimation" were often contrasted with the actual enumeration that was to take place pursuant to the Census Clause. During debate over the first Census Act, James Madison made such a distinction, noting that the census would provide an "exact number of every division" as compared to "assertions and conjectures." 2 The Founders' Constitution 139 (P. Kurland & R. Lerner eds. 87) (hereinafter Founders' Constitution). Similarly, when describing a document containing the results of the first census, Thomas Jefferson noted the difference between the returns that were "actual" and those that were added in red ink by "conjectur[e]." 8 The Writings of Thomas Jefferson 229 (A. Lipscomb ed. 03). George Mason, at one point, observed that he "doubted much whether the conjectural rule which was *494 to precede the census, would be as just, as it would be rendered by an actual census." Founders' Constitution 108.[6] Historians and commentators after the founding also distinguished actual enumerations from conjectures, demonstrating that there was a common understanding of these terms. For instance, an 1835 book about statistics in the United States explains that "[t]he number of inhabitants in this country, prior to its separation from Great Britain, rests principally on conjectural estimates." T. Pitkin, A Statistical View of the of the United States of America 582 (hereinafter Pitkin); see also Brief for Appellants 40-41. Prior to the revolution, when the British Board of Trade called upon the Governors to provide an account of their populations, some Colonies made "actual enumerations," such as Connecticut in 6 and in 1774, while others made estimates "founded upon the number of taxable polls, or the number of the militia." Pitkin 582-583. A widely cited 1800 article published in England by John Rickman after the first United States census also used the term "actual enumeration" several times to describe the count that "must always be under the real number," noting at the same time that this "method (fraught with trouble and expence) attempts an accuracy not necessary, or
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with trouble and expence) attempts an accuracy not necessary, or indeed attainable, in a fluctuating subject." John Rickman's Article on the Desirability of Taking A Census, reprinted in D. Glass, Numbering the People 111 (73) (hereinafter Glass). See also Brief for Appellants 47. Discussion of an "actual enumeration" can be contrasted to his subsequent proposal for England, which included estimation methods resembling both sampling and imputation since Rickman deemed it appropriate to make "general inferences" *495 from modern registers to make up for deficient registers. Glass 111-112. To be sure, the Census Clause enables Congress to prescribe the "Manner" in which the enumeration is taken. The Court suggests that "enumeration" implies the breadth of Congress' methodological authority, rather than its constraints. See ante, at 474. But while Congress may dictate the manner in which the census is conducted,[7] it does not have unbridled discretion. For the purposes of apportionment, it must follow the Constitution's command of an "actual Enumeration." Madison made this point clear during debate of the first Census Act when he noted the difficulties "attendant on the taking the census, in the way required by the constitution, and which we are obliged to perform." Founders' Constitution 139. The Court also places undue weight on the penultimate version of the Clause, the iteration that was given to the Committee of Detail and Committee of Style. See ante, at 474-475. Whatever may be said of the earlier version, the Court rejected a similar reliance in (93), because "we must presume that the Committee's reorganization or rephrasing accurately captured what the Framers meant in their unadorned language." *496 Carrying the majority's "argument to its logical conclusion would constrain us to say that the second to last draft would govern in every instance where the Committee of Style added an arguably substantive word. Such a result is at odds with the fact that the Convention passed the Committee's version, and with the well-established rule that the plain language of the enacted text is the best indicator of intent." at -232. Rather than rely on the draft, I focus on the words of the adopted Constitution. III The original understanding can be discerned not only by examining the text but also by considering the "meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions of the people of and in the several states." Rhode The history of census taking in the Colonies and elsewhere, discussions surrounding the ratification of the Census Clause, and the early statutes implementing the Clause provide insight into its meaning. A
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statutes implementing the Clause provide insight into its meaning. A Census taking is an age-old practice. With only a few exceptions, however, before the th century most countries conducted partial enumerations that were supplemented by estimates of the unenumerated portion of the population. Wolfe, Population Censuses Before 1790, 27 J. Am. Statistical Assn. 357 (32) (hereinafter Wolfe). The contentious history of censuses, partial or otherwise, has long influenced decisions about whether to undertake them. See[8] It *497 is a history rampant with manipulation for political and fiscal gains. See generally at -370; Alterman 43, 54; Glass -20. At times, political resistance to censuses precluded their taking. Suspicion of government and opposition on religious grounds, for example, prevented a general census in France during the 18th century. Wolfe 367; see also Alterman 49. And in England, while "estimates and conjectures" as to changes in the population were frequently made in the 18th century, a 3 proposal to provide for a general enumeration was rejected by Parliament, because it was thought that a census might reveal England's "weakness to her enemies," and that it might be followed by "some public misfortune or epidemical distemper." Wolfe 368 (internal quotation marks omitted).[9] England was in part responsible for the first colonial censuses, as the British Board of Trade required population counts so that it could properly administer the Colonies. D. Halacy, Census: 0 Years of Counting America 29 (80) (hereinafter Halacy). The Colonies had their own encounters with various population counting methods. Prior to 1790, there were at least 38 population counts taken in the Colonies. See Alterman 165. According to one historian, however, there was "reason to suspect, [that the censuses were] often intentionally misleading, when officials, on the one hand of the boastful, or on the other hand of the timid type, thought to serve some interest by exaggeration or by understatement." F. Dexter, Estimates of Population in the *498 American Colonies, in Proceedings of the American Antiquarian Society 22 (7) (hereinafter Dexter). Many Americans resisted census-taking efforts. According to an 7 inventory of the Colonies' attempts at population estimates, "Connecticut pursued in her colonial history the policy of hiding her strength in quietness; so far as might not be inconsistent with general truthfulness, she preferred to make no exhibit of her actual condition."[10] A 1712 census in New York "met with so much opposition, from superstitious fear of its breeding sickness, that only partial returns were obtained." See also Century 3. In New Jersey, the population counts of the mid-18th century apparently comprised "such guesses as the Royal Governors could make,
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apparently comprised "such guesses as the Royal Governors could make, for the satisfaction of their superiors." Dexter 36. In 1766, Benjamin Franklin "supposed that there might be about 160,000 whites in Pennsylvania but he did not profess to speak with accuracy, and was under a bias which led him, perhaps unconsciously, into cautious understatement." Georgia was apparently "singularly misrepresented, being overestimated in the Federal Convention of 1787 at nearly half as much again as her real amount of population, while the rest of the colonies were underestimated considerably, the total of the Convention's figures falling short of the reality by more than half a million." The Framers also had experience with various statistical techniques. For example, Thomas Jefferson, who as Secretary of State would later be charged with running the first official national census, had a great interest in mathematics *499 and numbers. See Halacy 33; Cohen 112-113. In 1782, Jefferson estimated Virginia's population and his calculation exhibited an awareness that statistical estimation techniques could be used to calculate population. Virginia had been unable to manage a full census for the Continental Congress; eight counties had failed to turn in any census data. J. Cassedy, Demography in Early America: Beginnings of the Statistical Mind, 1600-1800, p. 228 (69) (hereinafter Cassedy). Jefferson had to extrapolate from incomplete tax returns, militia muster rolls, and other data. Nonetheless, he produced an estimate of 567,614. First, he listed certain known facts, including data about Virginia's population in all but eight counties. In the eight counties for which information was not available, he knew that there had been 3,161 men in the militia in 1779 and 1780. He then listed five assumptions, such as "[t]he number of people under 16 years of age was equal to the number 16 years and over," on which he based his final estimate. Alterman 168-169. Another elaborate effort at population calculation was undertaken by the Governor of Massachusetts in 1763, who estimated his Colony's population in three ways. First, he made an estimate from a return to the General Court of "`rateable polls'" of males over 16 eligible to vote. He added an estimate of males who were too poor to pay the poll tax, and then added similar numbers of females. He made another estimate by multiplying the militia returns by four. He calculated a third estimate from the number of houses. Since many believed that houses averaged five occupants and others "preferred five and a half," he used both numbers. After giving the British Board of Trade several numbers, however, he concluded that the "actual population was
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several numbers, however, he concluded that the "actual population was none of these figures" and the population was in fact higher. Cassedy 73. In any event, "[s]ince all of the returns used in the estimates had been made for tax purposes, it was understood that they would be well on the low side." *500 The Framers were quite familiar not only with various census-taking methods but also with impediments to their successful completion. The Continental Congress had already used population estimates to make decisions about taxation, and such efforts were met with resistance. In 1775, the Continental Congress had ascertained population estimates for the Colonies in order to apportion the taxes and costs of the Revolutionary War. Pitkin 583. See also Halacy 30-31 ("Debts incurred in the Revolutionary War hastened the ordering of a standard form of census. A census of the colonies had been ordered, but some of them never complied, and the rest did so in different ways"). New Hampshire in particular complained that the estimate of its population for the purposes of calculating Revolutionary War costs was too high. Pitkin 583. It had "caused an actual enumeration to be made, by which it appeared, that the number of her inhabitants" was 20,000 lower than the estimate. See also Brief for Appellants 47. New Hampshire petitioned the Continental Congress to change the amount of taxation. New Hampshire's effort was in vain, because Congress "refused to alter her proportion of her taxes on that account." See also 10 New Hampshire Provincial and State Papers 580 (reprint 73) ("[T]he [proportion of taxes assigned New Hampshire by Congress in 1781] is too high by a very considerable sum, that by our numbers which were taken in the year 1775 by the selectmen of the several Towns & Parishes & Return made under Oath this proportion will appear much too large"). B The Framers knew that the calculation of populations could be and often were skewed for political or financial purposes. Debate about apportionment and the census consequently focused for the most part on creating a standard that would limit political chicanery. While the Framers did not extensively discuss the method of census-taking, many *501 expressed the desire to bind or "shackle" the legislature so that neither future Congresses nor the States would be able to let their biases influence the manner of apportionment. See Founders' Constitution 103-104. As James Madison explained: "In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the
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the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree, on the disposition, if not on the cooperation of the States, it is of great importance that the States should feel as little bias as possible to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests which will control and balance each other and produce the requisite impartiality." The Federalist No. 54, pp. 340-341 (C. Rossiter ed. 61). Alexander Hamilton likewise noted, in a discussion about the proportion of taxes that "[a]n actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression." No. 36, at 220. Discussion revealed a keen awareness that absent some fixed standard, the numbers were bound to be subject to political manipulation. While Gouverneor Morris appears to have been one of the strongest opponents of "fettering the Legislature too much," he at least recognized that if the mode for taking the census was "unfixt the Legislature may use such a mode as will defeat the object: and perpetuate the inequality." Founders' Constitution 102. He believed, however, that "[i]f we can't agree on a rule that will be just *502 at this time, how can we expect to find one that will be just in all times to come." Edmund Randolph, on the other hand, noted that if dangers suggested by Gouverneor Morris were "real, of advantage being taken of the Legislature in pressing moments, it was an additional reason, for tying their hands in such a manner that they could not sacrifice their trust to momentary considerations." During debate of a proposal "to take a periodical census," George Mason noted that he "did not object to the conjectural ratio which was to prevail in the outset" for apportionment, prior to the census, but "considered a Revision from time to time according to some permanent & precise standard as essential to fair representation." "From the nature of man," Mason observed, "we may be sure, that those who have power in their hands will not give it up while they can retain it. On the Contrary we know they will always when they can rather increase it." Some who initially believed that the Congress should have discretion changed their
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Utah v. Evans
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initially believed that the Congress should have discretion changed their minds after listening to the arguments by Randolph, Mason, and others. Roger Sherman, for example, "was at first for leaving the matter wholly to the discretion of the Legislature; but he had been convinced by the observations of (Mr. Randolph & Mr. Mason) that the periods & the rule of revising the Representation ought to be fixt by the Constitution." Nathaniel Ghorum perceptively noted that "[i]f the Convention who are comparatively so little biassed by local views are so much perplexed, How can it be expected that the Legislature hereafter under the full biass of those views, will be able to settle a standard." On the other hand, Reid continued to believe that "the Legislature ought not to be too much shackled." He also thought that "[it] would make the Constitution like Religious Creeds, embarrassing to those bound to conform to them & more likely to produce dissatisfaction and Scism, than harmony and union." *503 While debate continued, with various iterations of the Clause considered, it was clear that the principle concern was that the Constitution establish a standard resistant to manipulation. As Justice Story later observed, "apportion[ing] representatives among the states according to their relative numbers had the recommendation of great simplicity and uniformity in its operation, of being generally acceptable to the people, and of being less liable to fraud and evasion, than any other, which could be devised." Commentaries on the Constitution of the United States 327, p. 238 (R. Rotunda & J. Nowak eds. 87). C We have long relied on contemporaneous constructions of the Constitution when interpreting its provisions, for "early congressional enactments `provid[e] "contemporaneous and weighty evidence" of the Constitution's meaning.'" See also (26) ("This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions" (collecting cases)). Accordingly, I turn next to the early Census Acts, which provide significant additional evidence that the Framers meant what they said in adopting the words "actual Enumeration." From the first census, Congress directed that the census be taken by actually counting the people. House of 5 U. S., at 335. Congress enacted a series of requirements for how to accomplish the counting; none mention the use of sampling or any other statistical technique or method of estimation. Rather, the first Census Act described, among other things, how many census
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Utah v. Evans
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first Census Act described, among other things, how many census takers (or deputies) could be used, their pay, the consequences of falsifying papers, what address to attribute to persons who had *504 more than one address, and how to count those who did not have an address. Congress ordered the first census to begin on August 2, 1790, and to be completed within nine months. Century 45. Marshals and their assistants were required to "take an oath or affirmation" to "`truly cause to be made, a just and perfect enumeration and description of all persons resident within [their] district[s].'" Act of Mar. 1, 1790, 1, reprinted in Wright 9. The Act required marshals to aggregate the numbers, but there was no provision allowing the marshals to estimate or extrapolate in order to fill in missing data. The Act provided that the "assistants" could, for a particular family, use data given by one member of that family. But the information could be taken only from persons over age 16, and these persons were required to give the assistant "a true account." 6, No other method of counting appears to have been permissible. And failure to make a return or falsifying a return triggered heavy monetary penalties and the threat of prosecution. 2, 3, In 1810, Congress added an express statement that "`the said enumeration shall be made by an actual inquiry at every dwelling-house, or of the head of every family within each district, and not otherwise.'" House of at 335 (citing Act of Mar. 26, 1810, 1, -566). The provision requiring census takers to visit personally each home appeared in statutes governing the next 14 censuses. See 5 U.S., at 335-336, and n. 5 (surveying Census Acts). There was widespread awareness that the early censuses were not entirely accurate. The enumerators confronted many problems, including confusion regarding which houses belonged to which districts, danger on the roads, the unwillingness of citizens to give the required information, superstition, and a fear from some that the census was connected to taxation. Century 45-46. For example, in a 1791 letter from George to Gouverneor Morris dated before the first census was complete, noted the difference *505 between the "enumeration" and an estimate he had previously given, and acknowledged that the official census would not be accurate: "In one of my letters to you the account which I gave of the number of inhabitants which would probably be found in the United States on enumeration, was too large. The estimate was then founded on the ideas held out by the Gentlemen in Congress of
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Utah v. Evans
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the ideas held out by the Gentlemen in Congress of the population of their several States, each of whom (as was very natural) looking thro' a magnifying glass would speak of the greatest extent, to which there was any probability of their numbers reaching. Returns of the Census have already been made from several of the States and a tolerably just estimate has been formed now in others, by which it appears that we shall hardly reach four millions; but one thing is certain our real numbers will exceed, greatly, the official returns of them." 31 Writings of George 329 (J. Fitzpatrick ed. 31). Apparently concerned about the effect that the results of the first census would have on foreign opinion, Jefferson, in a 1791 letter sending the results abroad, explained: "I enclose you a copy of our census, which, so far as it is written in black ink, is founded on actual returns, what is in red ink being conjectured, but very near the truth. Making very small allowance for omissions, which we know to have been very great, we may safely say we are above four millions." 8 Writings of Thomas Jefferson, at 229. While perhaps disappointed with the results of the census, he noted the difference between the returns that were "actual" and those that were added in red ink by "conjectur[e]." [11] There is *506 no suggestion, however, that his additional "conjectures" were used for apportionment. See T. Woolsey, The First Century of the Republic 221 (1876); Alterman 205. "Despite its deficiencies, the census provided the factual base about the American people which officials and scholars needed." Cassedy 220. Thus, while the Court asserts that there was a "strong constitutional interest in accuracy," ante, at 478, the stronger suggestion is that the Framers placed a higher value on preventing political manipulation. IV The text, history, and a review of the original understanding of the Census Clause confirm that an actual enumeration means an actual count, without estimation. While more sophisticated statistical techniques may be available today than at the time of the founding, the Framers had a great deal of familiarity with alternative methods of calculating population. They decided to constitutionalize the arduous task of an actual enumeration. I am persuaded that much like the earlier methods of estimation, hot-deck imputationa modern statistical technique that the Census Bureau refers to as "estimation"is not constitutionally permissible. In recent decades, decisions regarding whether, and what kind of, imputation and other statistical methods should be utilized have changed from administration to administration. Departing from past practice, imputation was first
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Utah v. Evans
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administration to administration. Departing from past practice, imputation was first used in the year 60 census. The Bureau has used some form of it in every decennial census since then. Plaintiffs' Statement of Undisputed Facts, App. 44; Response to Plaintiffs' Statement of Material Facts, In the year 70 census, about 900,000 persons were imputed to the apportionment count through household size and occupancy imputation. The Census Bureau also used a form of estimation that combined imputation and sampling. Declaration of Howard Hogan, In 80, the use of imputation shifted one seat in the House of *507 from Indiana to Florida, making the year 2000 census at least the second time that its use has changed apportionment.[12] At the earliest, status imputation was used in the year 90 census, although there is some dispute as to whether it was even used then. ; but see (stating that "the 90 imputation procedures continued the prior practice of using household size imputation and occupancy imputation but added status imputation"). Regardless, it apparently had no impact on apportionment. See In the year 90 census, the Secretary specifically decided against using a different form of estimation. The "Secretary's administrative decision declining to make an adjustment observed that `[t]he imputation scheme used [was] based on a series of assumptions that are mostly guesswork.'" Brief for Federal Petitioners in O. T. 95, Nos. 94-1614 etc., p. 8. The Secretary even noted that "large-scale statistical adjustment of the census through [this method] would `abandon a two hundred year tradition of how we actually count people,'" and that "statistical adjustment of the 90 census might open the door to political tampering in the future." Though different in kind, our recent history of experimentation with census-taking methods bears similarity to the various preratification estimates and enumerations. While I would not speculate about the Bureau's decisionmaking process, it is quite evident that the Framers, aware that the use of any estimation left the door open to political abuse, adopted the words "actual Enumeration" to preclude the availability of methods that permit political manipulation. Additionally, hot-deck imputation is properly understood as an estimation, which by definition cannot be an actual *508 counting of persons. The Court contends that imputation does not differ in principle from other traditional methods of counting, such as questioning of "`neighbors, landlords, postal workers, or other proxies'" about the number of inhabitants in a particular place. Ante, at 477. But that point is flawed in several important respects. To begin with, from the first census, such information was taken through an actual inquiry of a family member who
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Utah v. Evans
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taken through an actual inquiry of a family member who was over the age of 16. Act of Mar. 1, 1790, 6, reprinted in Wright 926. That household member was "obliged to render to such assistant of the division, a true account, if required, to the best of his or her knowledge, of all and every person belonging to such family respectively on pain of forfeiting twenty dollars, to be sued for and recovered by such assistant." Estimation was not allowed and family members who were caught providing false information were subject to fines. Questioning neighbors was not permitted until 0 and even then census data could only be based on information provided by those "living nearest to such place of abode." Act of Mar. 3, 1879, 8, Again, family members or agents of families were required by law "to render a true account" and those who "willfully fail[ed] or refuse[d]" were "guilty of a misdemeanor" and required to "pay a sum not exceeding one hundred dollars." 14, That process is far different from a computation where data about one "donor" house, that appears on "Census Burea[u] records," Hogan, App. 5, compiled far away from the actual residence, is used to estimate data about another. With "status imputation," for example, the Census Bureau is willing to impute data even though it categorizes these households as "Donees" "for which we know nothing." Memorandum Series B-17, at 5. While subsequent Acts may permit other forms of proxy, they do not assist with our analysis of the original understanding. Nor are we called upon to judge their constitutionality here. Because hot-deck imputation is an estimation procedure that includes persons not *509 "actually" counted, its use to adjust the census for apportionment purposes runs afoul of the Constitution. The Court's further reflection that "the Bureau's only choice is to disregard the information it has, using a figure of zero, or to use imputation in an effort to achieve greater accuracy," ante, at 478, makes no difference as to whether it is constitutionally permissible. Even if hot-deck imputation produces more accurate results (and we do not have the means to answer that question), the Framers well understood that some Americans would go uncounted. Accuracy is not the dispositive factor in the constitutional consideration. Despite their awareness that estimation techniques could be used to supplement data, the Framers chose instead to require an "actual Enumeration" or "counting of whole persons." Disappointment following the first census did not prompt a change in this view or in the text. A zero must remain a zero under the dictates
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Utah v. Evans
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text. A zero must remain a zero under the dictates of the Constitution. The Court takes the position that "enumeration" may be incompatible with gross statistical estimates, but concludes that such gross estimates are not at stake here. See ante, at 476. I derive little comfort from the fact that the Court has drawn a constitutional line at "`gross statistical estimates.'" The Court neglects to explain the boundaries of such gross estimates, begging the question of how "gross" must "gross" be? The Court nonchalantly comments that the Census Bureau used the method "sparingly," see ante, at 477, and that the "inference involves a tiny percent of the population," ante, at 479. But the consequences are far from trivial. One State's representation in Congress is reduced while another's is fortified. If the use of hot-deck imputation in the next Census shifts the balance of power in "only" two or three seats, will the Court continue to defend the method? Today, we deal with hot-deck imputation. But if history is our guide, surely other statistical methods will be employed in future censuses and there will be similar challenges. By accepting one method of estimation as constitutionally *510 permissible, the Court has opened the door, and we will be continually called to judge whether one form of estimation is more acceptable than another.[13] * * * After much debate and faced with a long history of political manipulation, the Framers decided to make the taking of an "actual Enumeration" a constitutional requirement. While other nations had attempted population counts, none had made the count itself an important method of maintaining democracy by mandating it through a founding document. As a leading French statistician noted: "The United States presents in its history a phenomenon that has no parallelthat of a people who initiated the statistics of their country on the very day that they formed their government, and who regulated, in the same instrument, the census of their citizens, their civil and political rights, and the destiny of their people." Alterman 164. Well familiar with methods of estimation, the Framers chose to make an "actual Enumeration" part of our constitutional structure. Today, the Court undermines their decision, leaving the basis of our representative government vulnerable to political manipulation. For the reasons stated above, I respectfully dissent from Part IV of the Court's opinion and would reverse the judgment of the District Court.
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Montana v. Egelhoff
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https://www.courtlistener.com/opinion/118043/montana-v-egelhoff/
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We consider in this case whether the Due Process Clause is violated by Montana Code Annotated 45-2-203, which provides, in relevant part, that voluntary intoxication "may *40 not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense." I In July 1992, while camping out in the Yaak region of northwestern Montana to pick mushrooms, respondent made friends with Roberta Pavola and John Christenson, who were doing the same. On Sunday, July 12, the three sold the mushrooms they had collected and spent the rest of the day and evening drinking, in bars and at a private party in Troy, Montana. Some time after 9 p.m., they left the party in Christenson's 1974 Ford Galaxy station wagon. The drinking binge apparently continued, as respondent was seen buying beer at 9:20 p.m. and recalled "sitting on a hill or a bank passing a bottle of Black Velvet back and forth" with Christenson. At about midnight that night, officers of the Lincoln County, Montana, sheriff's department, responding to reports of a possible drunk driver, discovered Christenson's station wagon stuck in a ditch along U. S. Highway 2. In the front seat were Pavola and Christenson, each dead from a single gunshot to the head. In the rear of the car lay respondent, alive and yelling obscenities. His blood-alcohol content measured36 percent over one hour later. On the floor of the car, near the brake pedal, lay respondent's38caliber handgun, with four loaded rounds and two empty casings; respondent had gunshot residue on his hands. Respondent was charged with two counts of deliberate homicide, a crime defined by Montana law as "purposely" or "knowingly" causing the death of another human being. Mont. Code Ann. 45-5-102 A portion of the jury charge, uncontested here, instructed that "[a] person acts purposely when it is his conscious object to engage in conduct of that nature or to cause such a result," and that "[a] person acts knowingly when he is aware of his conduct or when he is aware under the circumstances his conduct constitutes *41 a crime; or, when he is aware there exists the high probability that his conduct will cause a specific result." App. to Pet. for Cert. 28a-29a. Respondent's defense at trial was that an unidentified fourth person must have committed the murders; his own extreme intoxication, he claimed, had rendered him physically incapable of committing the murders, and accounted for his inability to recall the events of the night of July 12. Although respondent was allowed to make this use of the
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Montana v. Egelhoff
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Although respondent was allowed to make this use of the evidence that he was intoxicated, the jury was instructed, pursuant to Mont. Code Ann. 45-2-203 that it could not consider respondent's "intoxicated condition in determining the existence of a mental state which is an element of the offense." App. to Pet. for Cert. 29a. The jury found respondent guilty on both counts, and the court sentenced him to 84 years' imprisonment. The Supreme Court of Montana reversed. It reasoned (1) that respondent "had a due process right to present and have considered by the jury all relevant evidence to rebut the State's evidence on all elements of the offense charged," 900 P. 2d, at 266, and (2) that evidence of respondent's voluntary intoxication was "clear[ly] relevant to the issue of whether [respondent] acted knowingly and purposely," Because 45-2-203 prevented the jury from considering that evidence with regard to that issue, the court concluded that the State had been "relieved of part of its burden to prove beyond a reasonable doubt every fact necessary to constitute the crime charged," and that respondent had therefore been denied due process. We granted certiorari. II The cornerstone of the Montana Supreme Court's judgment was the proposition that the Due Process Clause guarantees a defendant the right to present and have considered *42 by the jury "all relevant evidence to rebut the State's evidence on all elements of the offense charged." Respondent does not defend this categorical rule; he acknowledges that the right to present relevant evidence "has not been viewed as absolute." Brief for Respondent 31. That is a wise concession, since the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible. As we have said: "The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Relevant evidence may, for example, be excluded on account of a defendant's failure to comply with procedural requirements. See And any number of familiar and unquestionably constitutional evidentiary rules authorize the exclusion of relevant evidence. For example, Federal (and Montana) Rule of Evidence 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Emphasis added.) Hearsay rules, see Fed. Rule Evid. 802, similarly prohibit the introduction of testimony which, though unquestionably relevant, is deemed insufficiently reliable.[1] Of course, to say that the right
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deemed insufficiently reliable.[1] Of course, to say that the right to introduce *43 relevant evidence is not absolute is not to say that the Due Process Clause places no limits upon restriction of that right. But it is to say that the defendant asserting such a limit must sustain the usual heavy burden that a due process claim entails: "[P]reventing and dealing with crime is much more the business of the States than it is of the Federal Government, and we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally `within the power of the State to regulate procedures under which its laws are carried out,' and its decision in this regard is not subject to proscription under the Due Process Clause unless `it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " See ; Respondent's task, then, is to establish that a defendant's right to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state is a "fundamental principle of justice." Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice. *44 See Here that gives respondent little support. By the laws of England, wrote the intoxicated defendant "shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses." 1 M. Pleas of the Crown *32-*33. According to and Coke, the law's condemnation of those suffering from dementia affectata was harsher still: citing Coke, explained that the law viewed intoxication "as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour." 4 W. Commentaries *25-*26. This stern rejection of inebriation as a defense became a fixture of early American law as well. The American editors of the 1847 edition of wrote: "Drunkenness, it was said in an early case, can never be received as a ground to excuse or palliate an offence: this is not merely the opinion of a speculative philosopher, the argument of counsel, or the obiter dictum of a single judge, but it is a sound and long established maxim of judicial policy, from which perhaps a single dissenting voice cannot be found. But if no other authority could be adduced, the uniform decisions of our own Courts from the first establishment of the government, would constitute it now a part of the common law of
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Montana v. Egelhoff
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constitute it now a part of the common law of the land." 1 In an opinion citing the foregoing passages from and Justice Story rejected an objection to the exclusion of evidence of intoxication as follows: "This is the first time, that I ever remember it to have been contended, that the commission of one crime was an excuse for another. Drunkenness is a gross vice, and in the contemplation of some of our laws is a crime; and I learned in my earlier studies, that so far from its being in law an excuse for murder, it is rather an aggravation *45 of its malignity." United (No. 14,868) (CC R. I. 1820). The historical record does not leave room for the view that the common law's rejection of intoxication as an "excuse" or "justification" for crime would nonetheless permit the defendant to show that intoxication prevented the requisite mens rea. Coke, and were familiar, to say the least, with the concept of mens rea, and acknowledged that drunkenness "deprive[s] men of the use of reason," 1 ; see It is inconceivable that they did not realize that an offender's drunkenness might impair his ability to form the requisite intent; and inconceivable that their failure to note this massive exception from the general rule of disregard of intoxication was an oversight. 's statement that a drunken offender shall have the same judgment "as if he were in his right senses" must be understood as precluding a defendant from arguing that, because of his intoxication, he could not have possessed the mens rea required to commit the crime. And the same must be said of the exemplar of the commonlaw rule cited by both and see 1 ; n. w, which is Serjeant Pollard's argument to the King's Bench in Reniger v. Fogossa, 1 Plowd. 1, 19, 75 Eng. Rep. 1, 31 (1550): "[I]f a person that is drunk kills another, this shall be Felony, and he shall be hanged for it, and yet he did it through Ignorance, for when he was drunk he had no Understanding nor Memory; but inasmuch as that Ignorance was occasioned by his own Act and Folly, and he might have avoided it, he shall not be privileged thereby." (Emphasis added.) See Beverley's Case, 4 Co. Rep. 123b, 125a, 76 Eng. Rep. 1, 1123 (K. B. 1603) ("although he who is drunk, is for the time non compos mentis, yet his drunkenness does not extenuate his act or offence, nor turn to his avail " (footnote omitted)). *46 Against this extensive evidence of a lengthy
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Montana v. Egelhoff
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(footnote omitted)). *46 Against this extensive evidence of a lengthy common-law tradition decidedly against him, the best argument available to respondent is the one made by his amicus and conceded by the State: Over the course of the 19th century, courts carved out an exception to the common law's traditional across-the-board condemnation of the drunken offender, allowing a jury to consider a defendant's intoxication when assessing whether he possessed the mental state needed to commit the crime charged, where the crime was one requiring a "specific intent." The emergence of this new rule is often traced to an 1819 English case, in which Justice Holroyd is reported to have held that "though voluntary drunkenness cannot excuse from the commission of crime, yet where, as on a charge of murder, the material question is, whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated [is] a circumstance proper to be taken into consideration." 1 W. Russell, Crimes and Misdemeanors *8 (citing King v. Grindley, Worcester Sum. Assizes 1819, MS). This exception was "slow to take root," however, Intoxication and Criminal Responsibility, even in England. Indeed, in the 1835 case of King v. Carroll, 7 Car. & P. 145, 147, 173 Eng. Rep. 64, 65 (N. P.), Justice Park claimed that Holroyd had "retracted his opinion" in Grindley, and said "there is no doubt that that case is not law." In this country, as late as the Missouri Supreme Court could speak as categorically as this: "To look for deliberation and forethought in a man maddened by intoxication is vain, for drunkenness has deprived him of the deliberating faculties to a greater or less extent; and if this deprivation is to relieve him of all responsibility or to diminish it, the great majority of crimes committed will go unpunished. This however is not the doctrine of the common law; and to its maxims, based as they obviously are upon true wisdom and sound *47 policy, we must adhere." And as late as the Vermont Supreme Court upheld the giving of the following instruction at a murder trial: "`The voluntary intoxication of one who without provocation commits a homicide, although amounting to a frenzy, that is, although the intoxication amounts to a frenzy, does not excuse him from the same construction of his conduct, and the same legal inferences upon the question of premeditation and intent, as affecting the grade of his crime, which are applicable to a person entirely sober.' " See Harris v. United States, 8 Ohio App. D. C. 20,
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Montana v. Egelhoff
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https://www.courtlistener.com/opinion/118043/montana-v-egelhoff/
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Harris v. United States, 8 Ohio App. D. C. 20, 26-30 (1896); ; ; Eventually, however, the new view won out, and by the end of the 19th century, in most American jurisdictions, intoxication could be considered in determining whether a defendant was capable of forming the specific intent necessary to commit the crime charged. See at ; On the basis of this historical record, respondent's amicus argues that "[t]he old common-law rule was no longer deeply rooted at the time the Fourteenth Amendment was ratified." Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 23. That conclusion is questionable, but we need not pursue the point, since the argument of amicus mistakes the nature of our inquiry. It is not the State which bears the burden of demonstrating that its rule is "deeply rooted," but rather respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is "`so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " *48 Thus, even assuming that when the Fourteenth Amendment was adopted the rule Montana now defends was no longer generally applied, this only cuts off what might be called an a fortiori argument in favor of the State. The burden remains upon respondent to show that the "new common-law" rulethat intoxication may be considered on the question of intentwas so deeply rooted at the time of the Fourteenth Amendment (or perhaps has become so deeply rooted since) as to be a fundamental principle which that Amendment enshrined. That showing has not been made. Instead of the uniform and continuing acceptance we would expect for a rule that enjoys "fundamental principle" status, we find that fully one-fifth of the States either never adopted the "new common-law" rule at issue here or have recently abandoned it.[2] Cf. See *49 ("We are aware that all but two of the States have abandoned the common-law rule But the question remains whether those [two] States are in violation of the Constitution"). It is not surprising that many States have held fast to or resurrected the common-law rule prohibiting consideration of voluntary intoxication in the determination of mens rea, because that rule has considerable justification[3]which alone casts doubt upon the proposition that the opposite rule is a "fundamental principle." A large number of crimes, especially violent crimes, are committed by intoxicated offenders; modern studies put the numbers as high as half of all homicides, for example. See, e. g., Third Special Report to the U. S. Congress on Alcohol and
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Montana v. Egelhoff
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Special Report to the U. S. Congress on Alcohol and Health from the Secretary of Health, Education, and Welfare 64 ; Note, Alcohol Abuse and the Law, Disallowing consideration of voluntary intoxication has the *50 effect of increasing the punishment for all unlawful acts committed in that state, and thereby deters drunkenness or irresponsible behavior while drunk. The rule serves as a specific deterrent, ensuring that those who prove incapable of controlling violent impulses while voluntarily intoxicated go to prison. And finally, the rule comports with and implements society's moral perception that one who has voluntarily impaired his own faculties should be responsible for the consequences. See, e. g., 356 So. 2d 1,[4] There is, in modern times, even more justification for laws such as 45-2-203 than there used to be. Some recent studies suggest that the connection between drunkenness and crime is as much cultural as pharmacologicalthat is, that drunks are violent not simply because alcohol makes them that way, but because they are behaving in accord with their learned belief that drunks are violent. See, e. g., Collins, Suggested Explanatory Frameworks to Clarify the Alcohol Use/Violence Relationship, 15 Contemp. Drug Prob. 107, 115 ; Critchlow, The Powers of John Barleycorn, 41 Am. Psychologist 751, 754- This not only adds additional support to the traditional view that an intoxicated criminal is not deserving of exoneration, but it suggests that jurieswho possess the same learned belief as the intoxicated offenderwill be too quick to accept the claim that the defendant was biologically incapable of forming the requisite *51 mens rea. Treating the matter as one of excluding misleading evidence therefore makes some sense.[5] In sum, not every widespread experiment with a procedural rule favorable to criminal defendants establishes a fundamental principle of justice. Although the rule allowing a jury to consider evidence of a defendant's voluntary intoxication where relevant to mens rea has gained considerable acceptance, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance, to qualify as fundamental, especially since it displaces a lengthy commonlaw tradition which remains supported by valid justifications today.[6] III The Supreme Court of Montana's conclusion that Mont. Code Ann. 45-2-203 violates the Due Process Clause purported to rest on two lines of our jurisprudence. First, *52 it derived its view that the Due Process Clause requires the admission of all relevant evidence from the statement in U.S. 284, that "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Respondent relies
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Montana v. Egelhoff
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fair opportunity to defend against the State's accusations." Respondent relies heavily on this statement, which he terms "the Chambers principle," Brief for Respondent 30. We held in Chambers that "the exclusion of [certain] critical evidence, coupled with the State's refusal to permit [petitioner] to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process." U.S., We continued, however: "In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circum- stances of this case the rulings of the trial court deprived Chambers of a fair trial." In other words, Chambers was an exercise in highly casespecific error correction. At issue were two rulings by the state trial court at Chambers' murder trial: denial of Chambers' motion to treat as an adverse witness one McDonald, who had confessed to the murder for which Chambers was on trial, but later retracted the confession; and exclusion, on hearsay grounds, of testimony of three witnesses who would testify that McDonald had confessed to them. We held that both of these rulings were erroneous, the former because McDonald's testimony simply was adverse, and the second because the statements "were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability," *53 at 300, and were "well within the basic rationale of the exception for declarations against interest," Thus, the holding of Chambers if one can be discerned from such a fact-intensive caseis certainly not that a defendant is denied "a fair opportunity to defend against the State's accusations" whenever "critical evidence" favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation. Respondent cites our decision in as evidence that his version of the "Chambers principle" governs our jurisprudence. He highlights statements in Crane to the effect that "an essential component of procedural fairness is an opportunity to be heard," which would effectively be denied "if the State were permitted to exclude competent, reliable evidence when such evidence is central to the defendant's claim of innocence." ; Brief for Respondent 31. But the very next sentence of that opinion (which respondent omits) makes perfectly clear that we were not setting forth an absolute entitlement to introduce crucial, relevant evidence: "In the absence of any valid state justification, exclusion of this kind of exculpatory
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Montana v. Egelhoff
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any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing." 476 U.S., -691 (internal quotation marks omitted). Our holding that the exclusion of certain evidence in that case violated the defendant's constitutional rights rested not on a theory that all "competent, reliable evidence" must be admitted, but rather on the ground that the Supreme Court of Kentucky's sole rationale for the exclusion ) was wrong. See Crane does nothing to undermine the principle that the introduction of relevant evidence can be limited by the State for a "valid" reason, as it has been by Montana. *54 The second line of our cases invoked by the Montana Supreme Court's opinion requires even less discussion. In re Winship, announced the proposition that the Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime, and established a corollary, that a jury instruction which shifts to the defendant the burden of proof on a requisite element of mental state violates due process. These decisions simply are not implicated here because, as the Montana court itself recognized, "[t]he burden is not shifted" under 272 Mont., The trial judge instructed the jury that "[t]he State of Montana has the burden of proving the guilt of the Defendant beyond a reasonable doubt," App. to Pet. for Cert. 27a, and that "[a] person commits the offense of deliberate homicide if he purposely or knowingly causes the death of another human being," at 28a. Thus, failure by the State to produce evidence of respondent's mental state would have resulted in an acquittal. That acquittal did not occur was presumably attributable to the fact, noted by the Supreme Court of Montana, that the State introduced considerable evidence from which the jury might have concluded that respondent acted "purposely" or "knowingly." See 272 Mont., For example, respondent himself testified that, several hours before the murders, he had given his handgun to Pavola and asked her to put it in the glove compartment of Christenson's car. Ibid.; 5 Tr. 1123. That he had to retrieve the gun from the glove compartment before he used it was strong evidence that it was his "conscious object" to commit the charged crimes; as was the execution-style manner in which a single shot was fired into the head of each victim. Recognizing that Sandstrom is not directly on point, the Supreme Court of Montana described 45-2-203 as a burden-reducing, rather than burden-shifting, statute. 272 *55 Mont.,
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Montana v. Egelhoff
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as a burden-reducing, rather than burden-shifting, statute. 272 *55 Mont., -123, 266. This obviously was not meant to suggest that the statute formally reduced the burden of proof to clear and convincing, or to a mere preponderance; there is utterly no basis for that, neither in the text of the law nor in the jury instruction that was given. What the court evidently meant is that, by excluding a significant line of evidence that might refute mens rea, the statute made it easier for the State to meet the requirement of proving mens rea beyond a reasonable doubtreduced the burden in the sense of making the burden easier to bear. But any evidentiary rule can have that effect. "Reducing" the State's burden in this manner is not unconstitutional, unless the rule of evidence itself violates a fundamental principle of fairness (which, as discussed, this one does not). We have "reject[ed] the view that anything in the Due Process Clause bars States from making changes in their criminal law that have the effect of making it easier for the prosecution to obtain convictions." Finally, we may comment upon the Montana Supreme Court's citation of the following passage in a case upholding a state law that placed on the defendant the burden of proving self-defense by a preponderance of the evidence: "It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case, i. e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such an instruction would relieve the State of its burden and plainly run afoul of [In re] Winship `s mandate. The instructions in this case are adequate to convey to the jury that all of the evidence, including the evidence going to selfdefense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the *56 State's proof of the elements of the crime." See 272 Mont., -123, 900 P. 2d, at 265. This passage can be explained in various wayse. g., as an assertion that the right to have a jury consider self-defense evidence (unlike the right to have a jury consider evidence of voluntary intoxication) is fundamental, a proposition that the historical record may support. But the only explanation needed for present purposes is the one given in : "It is to the holdings of our cases, rather than their dicta, that we must attend." If the Martin dictum means that the Due Process Clause requires all
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Justice Scalia
| 2,001 | 9 |
majority
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Kyllo v. United States
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https://www.courtlistener.com/opinion/118443/kyllo-v-united-states/
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This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment. I In 1991 Agent William Elliott of the United Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires highintensity lamps. In order to determine whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmthblack *30 is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U.S. C. 841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any people or activity within the walls of the structure"; "[t]he device used cannot penetrate walls or windows to
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Kyllo v. United States
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structure"; "[t]he device used cannot penetrate walls or windows to reveal conversations or human activities"; and "[n]o intimate details of the home were observed." Supp. App. to Pet. for Cert. 39-40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, but that *31 opinion was withdrawn and the panel (after a change in composition) affirmed, with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous `hot spots' on the roof and exterior wall," We granted certiorari. II The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "At the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See ; On the other hand, the antecedent question whether or not a Fourth Amendment "search" has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e. g., ; Cf. Visual surveillance was unquestionably lawful because "`the *32 eye cannot by the laws of England be guilty of a trespass.' " Boyd v. United We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property, see but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in "[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a "search"[1] despite the absence of trespass, is not an "unreasonable" one under the Fourth Amendment. See But in fact we have held that visual observation is no
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Kyllo v. United States
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in fact we have held that visual observation is no "search" at all perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone bootha location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the *33 Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See We have subsequently applied this principle to hold that a Fourth Amendment search does not occureven when the explicitly protected location of a house is concernedunless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how technological enhancement of ordinary perception from such a vantage point, if any, is too While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened," n. 4 III It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been *34 entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. The
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Kyllo v. United States
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of technology to shrink the realm of guaranteed privacy. The Katz testwhether the individual has an expectation of privacy that society is prepared to recognize as reasonablehas often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure 2.1(d), pp. 393-394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev. 173, 188; But see at -144, n. 12. While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homesthe prototypical and hence most commonly litigated area of protected privacy there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by senseenhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, constitutes a search at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the *35 information obtained by the thermal imager in this case was the product of a search.[2] The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating from the external surface of the house," Brief for United 26. The dissent makes this its leading point, see post, at 41, contending that there is a fundamental difference between what it calls "off-the-wall" observations and "through-the-wall surveillance." But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a houseand a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology including imaging technology that could discern all human *36 activity in the home. While the technology used in the present case was relatively crude, the
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Kyllo v. United States
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technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.[3] The dissent's reliance on the distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible with the dissent's belief, which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible. The most sophisticated thermal-imaging devices continue to measure heat "off-the-wall" rather than "through-the-wall"; the dissent's disapproval of those more sophisticated thermalimaging devices, see post, at 49, is an acknowledgment that there is no substance to this distinction. As for the dissent's extraordinary assertion that anything learned through "an inference" cannot be a search, see post, at 44, that would validate even the "through-the-wall" technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i. e., the making of inferences). And, of course, the novel proposition that inference insulates a search is blatantly contrary to United v. where the police "inferred" from the activation of a beeper that a certain can of ether was in the home. The police activity *37 was held to be a search, and the search was held unlawful.[4] The Government also contends that the thermal imaging was constitutional because it did not "detect private activities occurring in private areas," Brief for United 22. It points out that in Dow Chemical we observed that the enhanced aerial photography did not reveal any "intimate details." Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, "by even a fraction of an inch," was too and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes. Thus, in the only thing detected was a can of ether in the *38 home; and in the only thing detected by a physical search that went beyond what officers lawfully present could observe in "plain view" was the registration number of a phonograph turntable. These were intimate details because
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Justice Scalia
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Kyllo v. United States
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https://www.courtlistener.com/opinion/118443/kyllo-v-united-states/
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number of a phonograph turntable. These were intimate details because they were details of the home, just as was the detail of how warmor even how relatively warmKyllo was heating his residence.[5] Limiting the prohibition of thermal imaging to "intimate details" would not only be wrong in principle; it would be impractical in application, failing to provide "a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment," Oliver v. United To begin with, there is no necessary connection between the sophistication of the surveillance equipment and the "intimacy" of the details that it observeswhich means that one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and batha detail that many would consider "intimate"; and a more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which *39 home activities are "intimate" and which are not. And even when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up "intimate" details and thus would be unable to know in advance whether it is constitutional. The dissent's proposed standardwhether the technology offers the "functional equivalent of actual presence in the area being searched," post, at 47would seem quite similar to our own at first blush. The dissent concludes that Katz was such a case, but then inexplicably asserts that if the same listening device only revealed the volume of the conversation, the surveillance would be permissible, post, at 49-50. Yet if, without technology, the police could not discern volume without being actually present in the phone booth, Justice Stevens should conclude a search has occurred. Cf. ("I find little comfort in the Court's notion that no invasion of privacy occurs until a listener obtains some significant information by use of the device. A bathtub is a less private area when the plumber is present even if his back is turned"). The same should hold for the interior heat of the home if only a person present in the home could discern the heat. Thus the driving force of the dissent, despite its recitation of the above
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| 2,001 | 9 |
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Kyllo v. United States
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force of the dissent, despite its recitation of the above standard, appears to be a distinction among different types of informationwhether the "homeowner would even care if anybody noticed," post, at 50. The dissent offers no practical guidance for the application of this standard, and for reasons already discussed, we believe there can be none. The people in their houses, as well as the police, deserve more precision.[6] *40 We have said that the Fourth Amendment draws "a firm line at the entrance to the house," That line, we think, must be not only firm but also bright which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no "significant" compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward. "The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." Carroll v. United Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant. Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable causeand if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced. *41 * * * The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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Justice Stewart
| 1,976 | 18 |
majority
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Mathews v. De Castro
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https://www.courtlistener.com/opinion/109569/mathews-v-de-castro/
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Under the Social Security Act a married woman whose husband retires or becomes disabled is granted benefits if she has a minor or other dependent child in her care. A divorced *182 woman whose former husband retires or becomes disabled does not receive such benefits. The issue in the present case is whether this difference in the statutory treatment of married and divorced women is permissible under the Fifth Amendment to the United States Constitution.[1] I Section 202 (b) (1) of the Social Security Act, as added and amended, 42 U.S. C. 402 (b) (1) (1970 ed. and Supp. V), provides for the payment of "wife's insurance benefits."[2] To qualify under this section a woman must be the *183 wife or "divorced wife"[3] of an individual entitled to old-age or disability benefits. Then, assuming that she meets the other statutory requirements, the woman is eligible to receive a monthly payment if she "has attained age 62 or (in the case of a wife) has in her care (individually or jointly with [her husband]) a child entitled to a child's insurance benefit" 42 U.S. C. 402 (b) (1) (B) (emphasis supplied). As the italicized phrase indicates, a woman under 62 who has in her care an entitled child[4] must currently be married to the wage earner in order to be eligible to receive benefits. A divorced woman receives monthly payments if she is 62 or over and her ex-husband retires or becomes disabled, but if she is under 62, she receives no benefits even if she has a young or disabled child in her care.[5] *184 The appellee, Helen De Castro, was divorced from her husband in 1968, after more than 20 years of marriage. She cares for a disabled child who is eligible for and receives child's insurance benefits under the Act. In May 1971 her former husband applied for and later was granted old-age insurance benefits. Mrs. De Castro applied for wife's insurance benefits shortly thereafter. At the time of her application she was 56 years old. Her application was denied by the Secretary of Health, Education, and Welfare because no wife's benefits are payable to a divorced wife under 62 years of age. Mrs. De Castro then filed suit in the United States District Court for the Northern District of Illinois, seeking judicial review of the Secretary's decision. Her complaint alleged that 202 (b) (1) (B) of the Social Security Act "operates to arbitrarily discriminate against divorced wives," and prayed for an order directing the Secretary to pay benefits to her, a declaration that 202 (b) (1) (B)
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| 1,976 | 18 |
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Mathews v. De Castro
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https://www.courtlistener.com/opinion/109569/mathews-v-de-castro/
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benefits to her, a declaration that 202 (b) (1) (B) is unconstitutional, and an injunction against that section's application. A three-judge court was convened pursuant to 28 U.S. C. 2281, 2282. The court considered the parties' cross-motions for summary judgment and granted the relief prayed for in the complaint, holding that the wife's benefits provision "invidiously discriminates against divorced wives in violation of the Fifth Amendment." De Central to the court's ruling was its determination that "there is no rational basis for concluding that a married wife having a dependent child in her care has a greater economic need than a divorced wife caring for such a child." The Secretary appealed directly to this Court under 28 U.S. C. 1252, and we noted probable jurisdiction, *185 II The basic principle that must govern an assessment of any constitutional challenge to a law providing for governmental payments of monetary benefits is well established. Governmental decisions to spend money to improve the general public welfare in one way and not another are "not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment." 1 U.S. 619, In enacting legislation of this kind a government does not deny equal protection "merely because the classifications made by its laws are imperfect. If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' " To be sure, the standard by which legislation such as this must be judged "is not a toothless one," But the challenged statute is entitled to a strong presumption of constitutionality. "So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket." It is with this principle in mind that we consider the specific constitutional issue presented by this litigation. The old-age and disability insurance aspects of the Social Security system do not purport to be general public assistance laws that simply pay money to those who need it most. That was not the predominant purpose of these benefit provisions when they were enacted or when they were amended. Rather, the primary objective was to provide workers and *186 their families with basic protection against hardships created by the loss of earnings due to illness or old age.[6] The wife's insurance benefit at issue here is consistent with this overriding legislative aim: It enables a married
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Justice Stewart
| 1,976 | 18 |
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Mathews v. De Castro
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https://www.courtlistener.com/opinion/109569/mathews-v-de-castro/
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consistent with this overriding legislative aim: It enables a married woman already burdened with dependent children to meet the additional need created when her husband reaches old age or becomes disabled. Accordingly, the District Court's observation that many divorced women receive inadequate *187 child-support payments, while undoubtedly true, is hardly in point. The same can be said of the District Court's statement that "there is no rational basis for concluding that a married wife having a dependent child in her care has a greater economic need than a divorced wife caring for such a child." For whatever relevance these observations might have in a case involving a constitutional attack on a statute that gave monetary benefits to women based on their general overall need, that is not this case. Section 202 (b) (1) (B) of the Act addresses the particular consequences for his family of a wage earner's old age or disability. Congress could rationally have decided that the resultant loss of family income, the extra expense that often attends illness and old age, and the consequent disruption in the family's economic well-being that may occur when the husband stops working justify monthly payments to a wife who together with her husband must still care for a dependent child. Indeed, Congress took note of exactly these kinds of factors when it amended the Social Security Act in 1958. Between 1950 and 1958 wives under retirement age with dependent children received benefits only when their husbands became entitled to old-age insurance payments. Social Security Act Amendments of 1950, 101 (a), Congress then amended the Act to provide the same benefits when the wage earner becomes disabled.[7] Social Security *188 Amendments of 1958, 205 (b) (1), Both the House and Senate Committee reports accompanying the proposed legislation explained that the purpose of the monthly payments was to give "recognition to the problems confronting families whose breadwinners" stop work. The focus was specifically on "adequate protection for [the husband's] family," and the reports mentioned the high medical expenses often associated with disability and the possibility that the wife might have to forgo work in order to care for her disabled husband. H. R. Rep. No. 2288, 85th Cong., 2d Sess., 12-13 (1958); S. Rep. No. 2388, 85th Cong., 2d Sess., 10-11 (1958). In view of the legislative purpose, it is hardly surprising that the congressional judgment evidently was a different one with respect to divorced women. Divorce by its nature works a drastic change in the economic and personal relationship between a husband and wife. Ordinarily it means that they will go their
|
Justice Stewart
| 1,976 | 18 |
majority
|
Mathews v. De Castro
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https://www.courtlistener.com/opinion/109569/mathews-v-de-castro/
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and wife. Ordinarily it means that they will go their separate ways. Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married. The problems that a divorced wife may encounter when her former husband becomes old or disabled may well differ in kind and degree from those that a woman married to a retired or disabled husband must face. For instance, a divorced wife need not forgo work in order to stay at home to care for her disabled husband. She may not feel the pinch of the extra expenses accompanying her former husband's old age or disability. *189 In short, divorced couples typically live separate lives. It was not irrational for Congress to recognize this basic fact in deciding to defer monthly payments to divorced wives of retired or disabled wage earners until they reach the age of 62. This is not to say that a husband's old age or disability may never affect his divorced wife. Many women receive alimony or child support after divorce that their former husbands might not be able to pay when they stop work. But even for this groupwhich does not include the appellee in the present caseCongress was not constitutionally obligated to use the Social Security Act to subsidize support payments. It could rationally decide that the problems created for divorced women remained less pressing than those faced by women who continue to live with their husbands. In any event, the constitutional question "is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute." We conclude, accordingly, that the statutory classifications involved in this case are not of such an order as to infringe upon the Due Process Clause of the Fifth Amendment. The judgment is reversed. It is so ordered. MR. JUSTICE MARSHALL concurs in the judgment.
|
Justice Burger
| 1,973 | 12 |
majority
|
United States v. Orito
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https://www.courtlistener.com/opinion/108842/united-states-v-orito/
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Appellee Orito was charged in the United District Court for the Eastern District of Wisconsin with a violation of 18 U.S. C. 1462[1] in that he did "knowingly transport and carry in interstate commerce from San Francisco to Milwaukee by means of a common carrier, that is, Trans-World Airlines and North Central Airlines, copies of [specified] obscene, lewd, lascivious, and filthy materials" The materials specified included some 83 reels of film, with as many as eight to 10 copies of some of the films. Appellee moved to dismiss the indictment on the ground that the statute violated his First and Ninth Amendment rights.[2] The District Court granted his motion, holding that the statute was unconstitutionally overbroad since it failed to distinguish between "public" and "non-public" transportation of obscene material. The District Court interpreted this Court's decisions in ; ; and to establish *141 the proposition that "non-public transportation" of obscene material was constitutionally protected.[3] Although the District Court held the statute void on its face for overbreadth, it is not clear whether the statute was held to be overbroad because it covered transportation intended solely for the private use of the transporter, or because, regardless of the intended use of the material, the statute extended to "private carriage" or "nonpublic" transportation which in itself involved no risk of exposure to children or unwilling adults. The United brought this direct appeal under former 18 U.S. C. 3731 (1964 ed.) now amended, Pub. L. 91-644, 14 See United The District Court erred in striking down 18 U.S. C. 1462 and dismissing appellee's indictment on these "privacy" grounds. The essence of appellee's contentions is that Stanley has firmly established the right to possess obscene material in the privacy of the home and that this creates a correlative right to receive it, transport it, or distribute it. We have rejected that reasoning. This case was decided by the District Court before our decisions in United and United Those holdings negate the idea that some zone of constitutionally protected privacy *142 follows such material when it is moved outside the home area protected by Stanley.[4]United United See United But cf. United The Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education. See ; ; ; ; ; But viewing obscene films in a commercial theater open to the adult public, see Paris Adult Theatre I v. Slaton, ante, at 65-67, or transporting such films in common carriers in interstate commerce, has no claim to such
|
Justice Burger
| 1,973 | 12 |
majority
|
United States v. Orito
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https://www.courtlistener.com/opinion/108842/united-states-v-orito/
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common carriers in interstate commerce, has no claim to such special consideration.[5] It is hardly necessary to catalog the myriad activities that may be lawfully conducted *143 within the privacy and confines of the home, but may be prohibited in public. The Court has consistently rejected constitutional protection for obscene material outside the home. See United v. 200-ft. of Film, ante, at 6-9; Miller v. ante, at 23; United ; ; Given that obscene material is not protected under the First Amendment, Miller v. that the Government has a legitimate interest in protecting the public commercial environment by preventing such material from entering the stream of commerce, see Paris Adult Theatre I, ante, at 57-64, and (c) that no constitutionally protected privacy is involved, United we cannot say that the Constitution forbids comprehensive federal regulation of interstate transportation of obscene material merely because such transport may be by private carriage, or because the material is intended for the private use of the transporter. That the transporter has an abstract proprietary power to shield the obscene material from all others and to guard the material with the same privacy as in the home is not controlling. Congress may regulate on the basis of the natural tendency of material in the home being kept private and the contrary tendency once material leaves that area, regardless of a transporter's professed intent. Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material, based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure *144 could cause. See Paris Adult Theatre I v. Slaton, ante, at 57-63. See also United v. Alpers, ; Brooks v. United ; "The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control. McCray v. United ; Sonzinsky v. United 513 and cases cited." United v. Darby, 3 U.S. 100, "It is sufficient to reiterate the well-settled principle that Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature." North American[6] *145 As this case came to us on the District Court's summary dismissal of the indictment, no determination of the obscenity of the material involved has been made. Today, for the first time
|
Justice Blackmun
| 1,989 | 11 |
second_dissenting
|
Granfinanciera, SA v. Nordberg
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https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/
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I agree generally with what JUSTICE WHITE has said, but write separately to clarify, particularly in my own mind, the nature of the relevant inquiry. Once we determine that petitioners have no statutory right to a jury trial, we must embark on the Seventh Amendment inquiry set forth in Atlas First, we must determine whether the matter to be adjudicated is "legal" rather than "equitable" in nature, a determination which turns on the nature of the claim and of the relief sought. If the claim and the relief are deemed equitable, we need go no further: the Seventh Amendment's jury-trial right applies only to actions at law. In this case, the historical inquiry is made difficult by the fact that, before the Federal Rules of Civil Procedure unified law and equity, parties might have been drawn to the equity side of the court because they needed its procedural tools and interim remedies: discovery, accounting, the power to clear title, and the like. In light of the frequency with which these tools were likely needed in fraud cases of any kind, it is no surprise that, as JUSTICE WHITE points out, fraudulent conveyance actions, even if cognizable at law, often would be found on the equity docket. See generally O. Bump, Conveyances Made by Debtors to Defraud Creditors 532 (4th ed. 1896); F. Wait, Fraudulent Conveyances and Creditors' Bills 59-60 (1884); W. Roberts, Voluntary and Fraudulent *92 Conveyances 525-526 (3d Am. ed. 1845). This procedural dimension of the choice between law and equity lends a tentative quality to any lessons we may draw from history. The uncertainty in the historical record should lead us, for purposes of the present inquiry, to give the constitutional right to a jury trial the benefit of the doubt. Indeed, it is difficult to do otherwise after the Court's decision in Schoenthal turned on the legal nature of the preference claim and of the relief sought, rather than upon the legal nature of the tribunal to which "plenary proceedings" were assigned under the 1898 Bankruptcy Act. "With the historical evidence thus in equipoise," ante, at 87 (WHITE, J., dissenting), but with Schoenthal weighing on the "legal" side of the scale, I then would turn to the second stage of the Atlas inquiry: I would ask whether, assuming the claim here is of a "legal" nature, Congress has assigned it to be adjudicated in a special tribunal "with which the jury would be incompatible." Atlas ; see also Here, I agree with JUSTICE WHITE that as interpreted in Atlas requires the conclusion that courts exercising core bankruptcy
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Justice Blackmun
| 1,989 | 11 |
second_dissenting
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Granfinanciera, SA v. Nordberg
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https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/
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in Atlas requires the conclusion that courts exercising core bankruptcy functions are equitable tribunals, in which "a jury would be out of place and would go far to dismantle the statutory scheme." Atlas n. 11. Having identified the tribunal to which Congress has assigned respondent's fraudulent conveyance claim as equitable in nature, the question remains whether the assignment is one Congress may constitutionally make. Under Atlas that question turns on whether the claim involves a "public right." When Congress was faced with the task of divining the import of our fragmented decision in Northern Pipeline Construction it gambled and predicted that a statutory right which is an integral part of a pervasive regulatory *93 scheme may qualify as a "public right." Compare H. R. Rep. No. 98-9, pt. 1, pp. 6, 13 (1983) (House Report), with S. Rep. No. 98-55, pp. 32-40 (1983) (Senate Report); see ; see also ("[A] bankruptcy adjudication, though technically a dispute among private parties, may well be properly characterized as a matter of public rights"). Doing its best to observe the constraints of Northern Pipeline while at the same time preserving as much as it could of the policy goals of the major program of bankruptcy reform the decision in Northern Pipeline dismantled, see House Report, at 7, Senate Report, at 6-7, Congress struck a compromise. It identified those proceedings which it viewed as integral to the bankruptcy scheme as "core" (doing its best to exclude "Marathon-type State law cases"), and assigned them to a specialized equitable tribunal. I agree with JUSTICE WHITE, ante, at 88-89, that it would be improper for this Court to employ, in its Seventh Amendment analysis, a century-old conception of what is and is not central to the bankruptcy process, a conception that Congress has expressly rejected. To do so would, among other vices, trivialize the efforts Congress has engaged in for more than a decade to bring the bankruptcy system into the modern era. There are, nonetheless, some limits to what Congress constitutionally may designate as a "core proceeding," if the designation has an impact on constitutional rights. Congress, for example, could not designate as "core bankruptcy proceedings" state-law contract actions brought by debtors against third parties. Otherwise, Northern Pipeline would be rendered a nullity. In this case, however, Congress has not exceeded these limits. Although causes of action to recover fraudulent conveyances exist outside the federal bankruptcy laws, the problems created by fraudulent conveyances are of particular significance *94 to the bankruptcy process. Indeed, for this reason, the Bankruptcy Code long has included substantive legislation regarding fraudulent conveyances
|
Justice Blackmun
| 1,989 | 11 |
second_dissenting
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Granfinanciera, SA v. Nordberg
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https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/
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Bankruptcy Code long has included substantive legislation regarding fraudulent conveyances and preferences. And the cause of action respondent brought in this case arises under federal law. See 11 U.S. C. 548(a)(2) and 550(a). This substantive legislation is not a jurisdictional artifice. It reflects, instead, Congress' longstanding view that fraudulent conveyances and preferences on the eve of bankruptcy are common methods through which debtors and creditors act to undermine one of the central goals of the bankruptcy process: the fair distribution of assets among creditors. Congress' conclusion that the proper functioning of the bankruptcy system requires that expert judges handle these claims, and that the claims be given higher priority than they would receive on a crowded district court's civil jury docket (see Senate Report, at 3; House Report, at 7-8), is entitled to our respect. The fact that the reorganization plan in this case provided that the creditor's representatives would bring fraudulent conveyance actions only after the plan was approved does not render the relationship between fraudulent conveyance actions and the bankruptcy process "adventitious." Ante, at 60, n. 15 (majority opinion). Creditors would be less likely to approve a plan which forced them to undertake the burden of collecting fraudulently transferred assets if they were not assured that their claims would receive expert and expedited treatment. In sum, it must be acknowledged that Congress has legislated treacherously close to the constitutional line by denying a jury trial in a fraudulent conveyance action in which the defendant has no claim against the estate. Nonetheless, given the significant federal interests involved, and the importance of permitting Congress at long last to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal, I cannot say that Congress has crossed the constitutional line on the facts of this case. By holding otherwise, the Court *95 today throws Congress into still another round of bankruptcy court reform, without compelling reason. There was no need for us to rock the boat in this case. Accordingly, I dissent.
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Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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In these cases we consider the constitutionality of 42 U.S. C. 9, which provides a federal civil remedy for the *602 victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en banc, struck down 9 because it concluded that Congress lacked constitutional authority to enact the section's civil remedy. Believing that these cases are controlled by our decisions in United United and the Civil Rights we affirm. I Petitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute (Virginia Tech) in the fall of 1994. In September of that year, Brzonkala met respondents Antonio Morrison and James Crawford, who were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her. After the attack, Morrison allegedly told Brzonkala, "You better not have any diseases." Complaint ¶ 22. In the months following the rape, Morrison also allegedly announced in the dormitory's dining room that he "like[d] to get girls drunk and" The omitted portions, quoted verbatim in the briefs on file with this Court, consist of boasting, debased remarks about what Morrison would do to women, vulgar remarks that cannot fail to shock and offend. Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed. She sought assistance from a university psychiatrist, who prescribed *603 antidepressant medication. Shortly after the rape Brzonkala stopped attending classes and withdrew from the university. In early 1995, Brzonkala filed a complaint against respondents under Virginia Tech's Sexual Assault Policy. During the school-conducted hearing on her complaint, Morrison admitted having sexual contact with her despite the fact that she had twice told him "no." After the hearing, Virginia Tech's Judicial Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters. Virginia Tech's dean of students upheld the judicial committee's sentence. However, in July 1995, Virginia Tech informed Brzonkala that Morrison intended to initiate a court challenge to his conviction under the Sexual Assault Policy. University officials told her that a second hearing would be necessary to remedy the school's error in prosecuting her complaint under that policy, which had not been widely circulated to students. The university therefore conducted a second hearing under its Abusive Conduct Policy, which was in force prior to the dissemination of the Sexual Assault Policy. Following this second hearing the Judicial Committee again found Morrison guilty and sentenced him to an identical 2-semester suspension. This time, however, the description of Morrison's offense
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Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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2-semester suspension. This time, however, the description of Morrison's offense was, without explanation, changed from "sexual assault" to "using abusive language." Morrison appealed his second conviction through the university's administrative system. On August 21, 1995, Virginia Tech's senior vice president and provost set aside Morrison's punishment. She concluded that it was "`excessive when compared with other cases where there has been a finding of violation of the Abusive Conduct Policy,' " Virginia Tech did not inform Brzonkala of this decision. After learning from a *604 newspaper that Morrison would be returning to Virginia Tech for the fall 1995 semester, she dropped out of the university. In December 1995, Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that Morrison's and Crawford's attack violated 9 and that Virginia Tech's handling of her complaint violated Title IX of the Education Amendments of 1972, -375, 20 U.S. C. 16-1688. Morrison and Crawford moved to dismiss this complaint on the grounds that it failed to state a claim and that 9's civil remedy is unconstitutional. The United States, petitioner in No. 99-5, intervened to defend 9's constitutionality. The District Court dismissed Brzonkala's Title IX claims against Virginia Tech for failure to state a claim upon which relief can be granted. See It then held that Brzonkala's complaint stated a claim against Morrison and Crawford under 9, but dismissed the complaint because it concluded that Congress lacked authority to enact the section under either the Commerce Clause or 5 of the Fourteenth Amendment. A divided panel of the Court of Appeals reversed the District Court, reinstating Brzonkala's 9 claim and her Title IX hostile environment claim.[1], The full Court of Appeals vacated the panel's opinion and reheard the case en banc. The en banc court then issued an opinion affirming the District Court's conclusion that Brzonkala stated a claim under 9 because her complaint alleged a crime of violence and the allegations of Morrison's crude and derogatory statements regarding his *605 treatment of women sufficiently indicated that his crime was motivated by gender animus.[2] Nevertheless, the court by a divided vote affirmed the District Court's conclusion that Congress lacked constitutional authority to enact 9's civil remedy. Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari. Section 9 was part of the Violence Against Women Act of 1994, 40302, -1942. It states that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender." 42 U.S. C. 9(b).
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Justice Rehnquist
| 2,000 | 19 |
majority
|
United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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crimes of violence motivated by gender." 42 U.S. C. 9(b). To enforce that right, subsection (c) declares: "A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate." Section 9 defines a "crim[e] of violence motivated by gender" as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an *606 animus based on the victim's gender." 9(d)(1). It also provides that the term "crime of violence" includes any "(A) act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and "(B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but for the relationship between the person who takes such action and the individual against whom such action is taken." 9(d)(2). Further clarifying the broad scope of 9's civil remedy, subsection (e)(2) states that "[n]othing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action under subsection (c) of this section." And subsection (e)(3) provides a 9 litigant with a choice of forums: Federal and state courts "shall have concurrent jurisdiction" over complaints brought under the section. Although the foregoing language of 9 covers a wide swath of criminal conduct, Congress placed some limitations on the section's federal civil remedy. Subsection (e)(1) states that "[n]othing in this section entitles a person to a cause of action under subsection (c) of this section for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender." Subsection (e)(4) further states that 9 shall not be construed "to confer on the courts of the United States jurisdiction over any State
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Justice Rehnquist
| 2,000 | 19 |
majority
|
United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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the courts of the United States jurisdiction over any State law claim seeking *607 the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree." Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Congress explicitly identified the sources of federal authority on which it relied in enacting 9. It said that a "Federal civil rights cause of action" is established "[p]ursuant to the affirmative power of Congress under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution." 42 U.S. C. 9(a). We address Congress' authority to enact this remedy under each of these constitutional provisions in turn. II Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United 577-578 ; United With this presumption of constitutionality in mind, we turn to the question whether 9 falls within Congress' power under Article I, 8, of the Constitution. Brzonkala and the United States rely upon the third clause of the section, which gives Congress power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." As we discussed at length in our interpretation of the Commerce Clause has changed as our Nation has developed. See -557; ; We need not repeat that detailed review of *608 the Commerce Clause's history here; it suffices to say that, in the years since Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted. See -556; emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress' regulatory authority is not without effective bounds. "[E]ven [our] modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin the Court warned that the scope of the interstate commerce power `must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.' " (quoting Jones & Laughlin
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Justice Rehnquist
| 2,000 | 19 |
majority
|
United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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create a completely centralized government.' " (quoting Jones & Laughlin ).[3] As we observed in modern Commerce Clause jurisprudence has "identified three broad categories of activity that Congress may regulate under its commerce " * ; ). "First, Congress may regulate the use of the channels of interstate commerce." ; United ). "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." ; Southern R. ; at ). "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i. e., those activities that substantially affect interstate commerce." -559 (citing Jones & Laughlin ). Petitioners do not contend that these cases fall within either of the first two of these categories of Commerce Clause regulation. They seek to sustain 9 as a regulation of activity that substantially affects interstate commerce. Given 9's focus on gender-motivated violence wherever it occurs (rather than violence directed at the instrumentalities of interstate commerce, interstate markets, or things or persons in interstate commerce), we agree that this is the proper inquiry. Since most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation, it provides the proper framework for conducting the required analysis of 9. In we held that the Gun-Free School Zones Act of 1990, 18 U.S. C. 922(q)(1)(A), which made it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress' authority under the Commerce Clause. See Several significant considerations contributed to our decision. *610 First, we observed that 922(q) was "a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Reviewing our case law, we noted that "we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce." Although we cited only a few examples, including ; ; and Heart of Atlanta we stated that the pattern of analysis is clear. 514 U. S., -560. "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Both petitioners and Justice Souter's dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case. See, e. g., 560 ("Even Wickard, which is perhaps the most
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Justice Rehnquist
| 2,000 | 19 |
majority
|
United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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e. g., 560 ("Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not"), 561 ("Section 922(q) is not an essential part of a larger regulation of economic activity"), 566 ("Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender `legal uncertainty' "), 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition *611 elsewhere, substantially affect any sort of interstate commerce"); see also (stating that did not alter our "practical conception of commercial regulation" and that Congress may "regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy"), 577 ("Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur"), 580 ("[U]nlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far" ). `s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor. See -560.[4] The second consideration that we found important in analyzing 922(q) was that the statute contained "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have *612 an explicit connection with or effect on interstate commerce." Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce. Third, we noted that neither 922(q) "`nor its legislative
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Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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commerce. Third, we noted that neither 922(q) "`nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.' " While "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce," 514 U.S., (citing ; ), the existence of such findings may "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye." Finally, our decision in rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. The United States argued that the possession of guns may lead to violent crime, and that violent crime "can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe." The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive work force, which will negatively affect national productivity and thus interstate commerce. We rejected these "costs of crime" and "national productivity" arguments because they would permit Congress *6 to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." We noted that, under this but-for reasoning: "Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation
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Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e. g., -560, and the cases cited therein. Like the Gun-Free School Zones Act at issue in 9 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce. Although makes clear that such a jurisdictional element would lend support to the argument that 9 is sufficiently tied to interstate commerce, Congress elected to cast 9's remedy over a wider, and more purely intrastate, body of violent crime.[5] *614 In contrast with the lack of congressional findings that we faced in 9 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. See, e. g., H. R. Conf. Rep. No. 103-711, p. 385 (1994); S. Rep. No. 103-8, p. 40 (1993); S. Rep. No. 101-545, p. 33 (1990). But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in "`[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.' " 514 U.S., n. 2 (quoting ). Rather, "`[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.' " 514 U.S., n. 2 (quoting Heart of Atlanta ). *615 In these cases, Congress' findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers. Congress found that gender-motivated violence affects interstate commerce "by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products." H. R. Conf. Rep. No. 103-711, at 385. Accord, S. Rep. No. 103-8, at 54. Given these findings and petitioners' arguments, the concern that we expressed in that Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority seems well founded. See The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States' police power)
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Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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always been the prime object of the States' police power) to every attenuated effect upon interstate commerce. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gendermotivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part. Petitioners' reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of *616 marriage, divorce, and childrearing on the national economy is undoubtedly significant. Congress may have recognized this specter when it expressly precluded 9 from being used in the family law context.[6] See 42 U.S. C. 9(e)(4). Under our written Constitution, however, the limitation of congressional authority is not solely a matter of legislative grace.[7] See ; 1 Cranch, at -178. *617 We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is *618 truly national and what is truly local. (citing Jones & Laughlin ). In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e. g., (stating that Congress "has no general right to punish murder committed within any of the States," and that it is "clear that congress cannot punish felonies generally"). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.[8] See, e. g., ; ("[W]e always have rejected readings *619 of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power"), 596-597, and n. 6 (noting that the first Congresses did not enact nationwide punishments for criminal conduct under the Commerce Clause). III Because we conclude that the Commerce Clause does not provide Congress with authority to enact 9, we address petitioners' alternative argument that the section's civil remedy should be upheld as
|
Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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argument that the section's civil remedy should be upheld as an exercise of Congress' remedial power under 5 of the Fourteenth Amendment. As noted above, Congress expressly invoked the Fourteenth Amendment as a source of authority to enact 9. The principles governing an analysis of congressional legislation under 5 are well settled. Section 5 states that Congress may "`enforce' by `appropriate legislation' the constitutional guarantee that no State shall deprive any person of `life, liberty, or property, without due process of law,' nor deny any person `equal protection of the laws.' " City of Section 5 is "a positive grant of legislative power," that includes authority to "prohibi[t] conduct which is not itself unconstitutional and [to] intrud[e] into `legislative spheres of autonomy previously reserved to the States.' " ); see also However, "[a]s broad as the congressional enforcement power is, it is not unlimited." ; see also at In fact, as we discuss in detail below, several limitations inherent in 5's text and constitutional context have been recognized since the Fourteenth Amendment was adopted. Petitioners' 5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence. This assertion *620 is supported by a voluminous congressional record. Specifically, Congress received evidence that many participants in state justice systems are perpetuating an array of erroneous stereotypes and assumptions. Congress concluded that these discriminatory stereotypes often result in insufficient investigation and prosecution of gendermotivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence. See H. R. Conf. Rep. No. 103 711, at 385-386; S. Rep. No. 103-8, at 38, 41-55; S. Rep. No. 102-197, at 33-35, 41, 43-47. Petitioners contend that this bias denies victims of gender-motivated violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated violence to both remedy the States' bias and deter future instances of discrimination in the state courts. As our cases have established, state-sponsored gender discrimination violates equal protection unless it "`serves "important governmental objectives and the discriminatory means employed" are "substantially related to the achievement of those objectives."` " United in turn quoting ). See also However, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government.
|
Justice Rehnquist
| 2,000 | 19 |
majority
|
United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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balance of power between the States and the National Government. See (quoting T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871)). Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment's provisions, United and the Civil Rights In the Court considered a challenge to 2 of the Civil Rights Act of 1871. That section sought to punish "private persons" for "conspiring to deprive any one of the equal protection of the laws enacted by the State." We concluded that this law exceeded Congress' 5 power because the law was "directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers." In so doing, we reemphasized our statement from 100 U.S. 3, that "`these provisions of the fourteenth amendment have reference to State action exclusively, and not to any action of private ' " (misquotation in ). We reached a similar conclusion in the Civil Rights In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the 5 enforcement See also, e. g., U.S. 620, ; ; ; Moose Lodge No. ; ; United ("The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society"). The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthurand each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment. Petitioners contend that two more recent decisions have in effect overruled this longstanding limitation on Congress' 5 authority. They
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Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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effect overruled this longstanding limitation on Congress' 5 authority. They rely on United for the proposition that the rule laid down in the Civil Rights is no longer good law. In Guest, the Court reversed the construction of an indictment under 18 U.S. C. 241, saying in the course of its opinion that "we deal here with issues of statutory construction, not with issues of constitutional " Three Members of the Court, in a separate opinion by Justice Brennan, expressed the view that the Civil Rights *623 were wrongly decided, and that Congress could under 5 prohibit actions by private Three other Members of the Court, who joined the opinion of the Court, joined a separate opinion by Justice Clark which in two or three sentences stated the conclusion that Congress could "punis[h] all conspiracieswith or without state actionthat interfere with Fourteenth Amendment rights." Justice Harlan, in another separate opinion, commented with respect to the statement by these Justices: "The action of three of the Justices who joined the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary." n. 1 Though these three Justices saw fit to opine on matters not before the Court in Guest, the Court had no occasion to revisit the Civil Rights and having determined "the indictment [charging private individuals with conspiring to deprive blacks of equal access to state facilities] in fact contain[ed] an express allegation of state involvement." The Court concluded that the implicit allegation of "active connivance by agents of the State" eliminated any need to decide "the threshold level that state action must attain in order to create rights under the Equal Protection Clause." All of this Justice Clark explicitly acknowledged. See ("The Court's interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation, has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as the right to utilize public facilities"). *624 To accept petitioners' argument, moreover, one must add to the three Justices joining Justice Brennan's reasoned explanation for his belief that the Civil Rights were wrongly decided, the three Justices joining Justice Clark's opinion who gave no explanation whatever for their similar view. This is simply not the way that reasoned constitutional adjudication proceeds. We accordingly have no hesitation in saying that it would take more than the naked dicta contained in Justice Clark's opinion, when added to Justice Brennan's opinion, to cast any doubt upon the enduring vitality of the Civil Rights and Petitioners
|
Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
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upon the enduring vitality of the Civil Rights and Petitioners also rely on District of Carter was a case addressing the question whether the District of Columbia was a "State" within the meaning of Rev. Stat. 1979, 42 U.S. C. 1983a section which by its terms requires state action before it may be employed. A footnote in that opinion recites the same litany respecting Guest that petitioners rely on. This litany is of course entirely dicta, and in any event cannot rise above its source. We believe that the description of the 5 power contained in the Civil Rights is correct: "But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular [s]tate legislation or [s]tate action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of [s]tate officers." Petitioners alternatively argue that, unlike the situation in the Civil Rights here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is *625 abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting 9: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves. The statement of Representative Garfield in the House and that of Senator Sumner in the Senate are representative: "[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them." Cong. Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield). "The Legislature of South Carolina has passed a law giving precisely the rights contained in your `supplementary civil rights bill.' But such a law remains a dead letter on her statute-books, because the State courts, comprised largely of those whom the Senator wishes to obtain amnesty for, refuse to enforce it." Cong. Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen. Sumner). See also, e. g., Cong. Globe, 42d Cong., 1st Sess., at 653 (statement
|
Justice Rehnquist
| 2,000 | 19 |
majority
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United States v. Morrison
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https://www.courtlistener.com/opinion/118363/united-states-v-morrison/
|
g., Cong. Globe, 42d Cong., 1st Sess., at 653 (statement of Sen. Osborn); ; at App. 78 (statement of Rep. Perry); 2 Cong. Rec. 457 (1874) (statement of Rep. Butler); 3 Cong. Rec. 945 (1875) (statement of Rep. Lynch). But even if that distinction were valid, we do not believe it would save 9's civil remedy. For the remedy is simply not "corrective in its character, adapted to counteract and redress the operation of such prohibited [s]tate laws or proceedings of [s]tate officers." Civil Rights Or, as we have phrased it in more recent cases, prophylactic legislation under 5 must have a "`congruence *626 and proportionality between the injury to be prevented or remedied and the means adopted to that end." Florida Prepaid Postsecondary Ed. Expense ; Section 9 is not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias. In the present cases, for example, 9 visits no consequence whatever on any Virginia public official involved in investigating or prosecuting Brzonkala's assault. The section is, therefore, unlike any of the 5 remedies that we have previously upheld. For example, in Congress prohibited New York from imposing literacy tests as a prerequisite for voting because it found that such a requirement disenfranchised thousands of Puerto Rican immigrants who had been educated in the Spanish language of their home territory. That law, which we upheld, was directed at New York officials who administered the State's election law and prohibited them from using a provision of that law. In South Congress imposed voting rights requirements on States that, Congress found, had a history of discriminating against blacks in voting. The remedy was also directed at state officials in those States. Similarly, in Ex parte Virginia, Congress criminally punished state officials who intentionally discriminated in jury selection; again, the remedy was directed to the culpable state official. Section 9 is also different from these previously upheld remedies in that it applies uniformly throughout the Nation. Congress' findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the 5 remedy upheld in *627 was directed only to the State where the evil found by Congress existed, and in South the remedy was directed only to those States in which Congress found that there had been discrimination. For these reasons, we conclude that Congress' power under 5 does not extend to the enactment
|
Justice White
| 1,981 | 6 |
dissenting
|
Wood v. Georgia
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https://www.courtlistener.com/opinion/110425/wood-v-georgia/
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The Court's disposition of this case is twice flawed: first, there is no jurisdiction to vacate the judgment on the federal constitutional ground upon which the Court rests; second, the record does not sustain the factual inferences required to support the Court's judgment. I The petition for certiorari presented a single federal question: Does the Equal Protection Clause of the Fourteenth Amendment permit a State to revoke an indigent's probation because he has failed to make regular payments toward the satisfaction of a fine? This issue was properly presented to and ruled upon by the Georgia courts. No other federal constitutional *276 issue was presented there or brought here. The Court, however, disposes of this case on another ground, but a ground that also involves a constitutional issue: the possibly divided loyalties of petitioners' counsel may have deprived petitioners of due process and their constitutional right to counsel. Thus, we are to avoid one constitutional issue in favor of another, which was not raised by petitioners either here or below. I do not believe that this Court has jurisdiction even to reach this question, nor do I see why we should prefer one constitutional issue to another, even if we had the jurisdiction. The Court, ante, at 273, n. 20, suggests that the conflict-of-interest issue was presented here by respondent, the State of Georgia. But the State merely argued that petitioners' attorney was also the attorney for petitioners' employer who had agreed to pay the fine and who was now seeking to avoid payment by arguing petitioners' indigency. Neither here nor in the trial court has the State ever suggested that petitioners were deprived of due process or raised any other federal constitutional issue. The State has surely not confessed error or given any other indication that it is seeking anything but an affirmance of the decision belowhardly an appropriate disposition if the State is suggesting that petitioners were denied their constitutional right to counsel. Moreover, nowhere in the passage of the response cited by the Court are the terms "conflict of interest" used, nor is there even a clear suggestion made that counsel was acting other than in the interests of petitioners in arguing that an indigent's probation cannot be revoked for failure to pay a fine. However the State's argument here is to be characterized, this case comes to us on writ of certiorari to a state court. Our jurisdiction, therefore, arises under 28 U.S. C. 1257 (3) and is limited here to federal rights and privileges that have been "specially set up or claimed," and upon which
|
Justice White
| 1,981 | 6 |
dissenting
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Wood v. Georgia
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https://www.courtlistener.com/opinion/110425/wood-v-georgia/
|
have been "specially set up or claimed," and upon which there has been a final decision by the highest state court in which a *277 decision could be had. The right-to-counsel claim was never raised in the state court, nor did the state court ever render a decision on the issue: There is, thus, a jurisdictional bar to our reaching the issue. ; ; and cases cited there. It is as clear as could be that no federal constitutional claim of any kind was made in the state courts with respect to a conflict of interest and the adequacy of petitioners' counsel. At the revocation hearing, petitioners testified that they were without funds to pay the fines, and their counsel urged that to incarcerate them would violate the Equal Protection Clause of the Fourteenth Amendment. On cross-examination, petitioners indicated that they had been assured by their employer that the employer would pay employee fines if they were convicted in cases such as this. The State's attorney then asserted several times that there was a conflict of interest because petitioners' counsel also represented petitioners' corporate employer and was being paid by that concern to represent petitioners.[1] But far from suggesting that the *278 alleged conflict was a ground of relief for petitioners, the State suggested that petitioners and their counsel had misled the court into thinking that the employer would pay the fines, and that the employer's undertaking should be enforced by sending petitioners "out to the jail for a while,"[2] rather than permit the employer to renege and free petitioners on equal protection grounds. This would convince the employer to pay because it would not want other employees to know that they would not be taken care of in the event trouble arose.[3]*279 In the course of these arguments, the State never mentioned the Federal Constitution. Petitioners' attorney in turn responded that although there had been an advance arrangement between petitioners and their employer that fines would be paid by the latter, the employer had not paid, and the only issue was whether petitioners should go to jail when they were without funds themselves to pay the fines. He urged that jailing them would violate the Equal Protection Clause.[4] He also suggested that if the asserted conflict of interest raised an ethical problem in the mind of the State's attorney, a complaint should be filed with the State Bar.[5] The judge, apparently rejecting the equal protection claim, revoked petitioners' probation, although petitioners have remained free on bond pending appeal. The sole issue in the Georgia Court of Appeals was whether
|
Justice White
| 1,981 | 6 |
dissenting
|
Wood v. Georgia
|
https://www.courtlistener.com/opinion/110425/wood-v-georgia/
|
sole issue in the Georgia Court of Appeals was whether petitioners had been denied the equal protection of the laws. That claim was rejected, the judgment of revocation was affirmed, and the Georgia Supreme Court denied further review. The equal protection issue, as I have said, is the only federal constitutional issue that has been presented here. The Court asserts that "it is appropriate to treat the due process issue as one `raised' below, and proceed to consider it here." Ante, n. 5. However, the Court fails to cite any passage from the record in which the alleged conflict of interest was presented to the state courts as a problem of constitutional dimension. The Court relies on 28 U.S. C. 2106, *280 but that section does not purport to expand the statutory limits on the Court's jurisdiction; rather, it relates only to the disposition of the case once jurisdiction exists. What JUSTICE REHNQUIST wrote in is equally applicable here: "A litigant seeking to preserve a constitutional claim for review in this Court must not only make clear to the lower courts the nature of his claim, but he must also make it clear that the claim is constitutionally grounded." Petitioners have done neither; nor has respondent done it for them. The Court apparently believes that under the possibility of a conflict of interest of constitutional dimensions should have prompted further inquiry by the trial judge. But did not purport to give this Court jurisdiction over a claim otherwise beyond its reach. Cuyler held only that if a trial court "reasonably should know that a particular conflict exists," then a failure to initiate an inquiry may constitute a Sixth Amendment violation. If this is the case here, then petitioners remain free to seek collateral relief in the lower courts.[6] *281 A majority of the Court, however, proceeds on the basis that it has jurisdiction to address the due process/adequacy-of-counsel issue. Accordingly, I proceed on that assumption. II As I see it, the Court's disposition of the case rests upon critical factual assumptions that are not supported by the record. Certainly the mere fact that petitioners' counsel was paid by their employer does not in itself constitute a conflict of interest of constitutional dimension.[7] Indeed, one would expect that in the normal course of things the interests of petitioners and of their employer would have corresponded throughout the proceedings. It would have been just as much in the employer's as in the employees' interest to have had the employees adjudged innocent. Similarly, assuming that the employer had promised to pay whatever fines
|
Justice White
| 1,981 | 6 |
dissenting
|
Wood v. Georgia
|
https://www.courtlistener.com/opinion/110425/wood-v-georgia/
|
assuming that the employer had promised to pay whatever fines might be levied against the employees, it was in the employer's interest, just as it was in their interest, to have these fines set at the lowest possible amount. The conflict of interests, therefore, only emerges by assuming that the employer, the owner of an adult bookstore and a movie theater, set out to construct a constitutional test case and the petitioners' counsel represented the employer in this regard. Not even a decision to pursue a test case, however, would in itself create a conflict of interest. One must assume further that it was for the sake of this interest that the employer decided not to pay the fines and for the sake of this interest of the employer *282 that petitioners' attorney did not object to the size of the fines or move in timely fashion for a modification of the conditions of probation. I recognize that the Court's conclusion relies only upon the "possibility" of this scenario, but I find these assumptions implausible and would require a much stronger showing than this record reveals before I would speculate on the likelihood of such a motive of the employer and the knowing cooperation of counsel to this end, let alone dispose of the case on that basis.[8] First, since the only submission of petitioners was that they should not go to jail for failure to pay their fines, even if the court sustained their position, their liability on the fine would remainas would that of the employer if it had an enforceable obligation to pay. It is, therefore, difficult to find any interest that the employer might have in litigating a test case on this issue through the Georgia courts and to this Court. Second, the record suggests two much more plausible explanations of the employer's failure to pay the fines, neither of which implies a conflict of interest: The employer may have reneged on its promise to pay fines because petitioners were no longer working for the employer, or it may have reneged because ownership of the establishments changed *283 hands.[9] The fact that the employer may have continued to meet some of the expenses, but did not pay the substantial fines, does not indicate to me that the employer manipulated the situation to create a test case; more likely, the employer reneged on his promise because, given the change in circumstances of both the employer and the petitioners, the expense was simply greater than that which the employer was willing to bear at this point. If the
|
Justice White
| 1,981 | 6 |
dissenting
|
Wood v. Georgia
|
https://www.courtlistener.com/opinion/110425/wood-v-georgia/
|
employer was willing to bear at this point. If the employer was simply unwilling to pay the fines, then the arguments advanced by the attorney may very well have been the best and only arguments available to petitioners.[10] Indeed, the employer having failed to pay, counsel would have been derelict not to press the equal protection claim on behalf of his indigent clients. Obviously, success on this ground would have advantaged petitioners; and I fail to see, as apparently the trial court failed to see, Tr. 15, 28, how petitioners will be constitutionally deprived by assertion of the equal protection claim. The fact that petitioners did move, although belatedly, for a modification of the conditions of parole[11] further indicates that the employer was more interested *284 in cutting his costs than creating a test case.[12] On this record, therefore, I believe it necessary to reach the substantive question that we granted certiorari to resolve. III Although I think that there are circumstances in which a State may impose a suitable jail term in lieu of a fine when the defendant cannot or will not pay the fine, there are constitutional limits on those circumstances, and the State of Georgia has exceeded the limits in this case. In Williams, convicted of petty theft, received the maximum sentence of one year's imprisonment and a $500 fine (plus $5 in court costs). As permitted by statute, the judgment provided that if, when the one-year sentence expired, Williams did not immediately pay the fine and court costs, he was to remain in jail a length of time sufficient to satisfy the total debt, calculated at the rate of $5 per day. We held that "the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." Therefore, the statute as applied to Williams, who was too poor to pay the fine, violated the Equal Protection Clause. involved an indigent defendant incarcerated for nonpayment of fines imposed for *285 violating traffic ordinances. Under Texas law, traffic offenses were punishable only by fines, not imprisonment. When Tate could not pay $425 in fines imposed for nine traffic convictions, he was jailed pursuant to the provisions of another Texas statute and a municipal ordinance that required him to remain in jail a sufficient time to satisfy the fines, again calculated at the rate of $5 per day. We reversed on the authority of saying: "Since Texas has legislated a `fines only' policy for traffic offenses, that statutory ceiling
|
Justice White
| 1,981 | 6 |
dissenting
|
Wood v. Georgia
|
https://www.courtlistener.com/opinion/110425/wood-v-georgia/
|
a `fines only' policy for traffic offenses, that statutory ceiling cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine." The Court, however, was careful to repeat what it had said in Williams: "`The state is not powerless to enforce judgments against those financially unable to pay a fine'" and is free to choose other means to effectuate this In the Court emphasized that its holding "does not deal with a judgment of confinement for nonpayment of a fine in the familiar pattern of alternative sentence of $30 or 30 days." In neither Williams nor Tate did it appear that "jail [was] a rational and necessary trade-off to punish the individual who possesses no accumulated assets since the substitute sentence provision, phrased in terms of a judgment collection statute, [did] not impose a discretionary jail term as an alternative sentence, but rather equate[d] days in jail with a fixed sum." As both the Court and Justice Harlan implied, if the Court had confronted a legislative scheme that imposed alternative sentences, the analysis would have been different. Indigency does not insulate those who have violated the criminal law from any punishment whatsoever. As I see it, if an indigent cannot pay a fine, even in installments, the *286 Equal Protection Clause does not bar the State from specifying other punishment, even a jail term, in lieu of the fine.[13] To comply with the Equal Protection Clause, however, the State must make clear that the specified jail term in such circumstances is essentially a substitute for the fine and serves the same purpose of enforcing the particular statute that the defendant violated. In both Williams and Tate the State violated this principle by speaking inconsistently: In each case, the legislature declared its interest in penalizing a particular offense to be satisfied by a specified jail term (in Tate, no jail term at all) and at the same time subjected the indigent offender to a greater term of punishment. The incarceration of the petitioners in this case cannot be distinguished from that which we found to be unconstitutional in Williams and Tate. Here, the State imposed probated prison terms and fines, but made installment payment of the fines a condition of probation: Had the fines been paid in full and other conditions of probation satisfied, there would have been no time in jail at all. Thus, the ends of the State's criminal
|
Justice White
| 1,981 | 6 |
dissenting
|
Wood v. Georgia
|
https://www.courtlistener.com/opinion/110425/wood-v-georgia/
|
jail at all. Thus, the ends of the State's criminal justice system did not call for any loss of liberty except that incident to probation. Under these circumstances, the State's only interest in incarcerating these petitioners for not paying their fines was to impose a loss of liberty that would be as efficacious as the fines in satisfying the State's interests in enforcing the criminal law involved. However, no calculation like that was made here. Upon nonpayment, probation was automatically revoked and petitioners were sentenced to their full prison *287 terms.[14] There was no attempt to provide, in addition to the jail terms for which they were given probation, a term of imprisonment that would be a proper substitute for the fines. In fact, even at the conclusion of their prison terms, petitioners will apparently be liable for the unpaid fines. This is little more than imprisonment for failure to pay a fine, without regard to the goals of the criminal justice system. As in Williams and Tate, the State is speaking inconsistently concerning the necessity of imprisonment to meet its penal objectives; imprisonment of an indigent under these circumstances is constitutionally impermissible. This case falls well within the limits of what we meant to prohibit when we announced in quoting that the "`Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent.'" Accordingly, I would reverse the judgment.
|
Justice Stevens
| 1,987 | 16 |
second_dissenting
|
Pennsylvania v. Finley
|
https://www.courtlistener.com/opinion/111880/pennsylvania-v-finley/
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Without bothering to identify the basis for federal jurisdiction in this case, the Court blithely assumes that the decision below does not rest on an independent and adequate state ground. I cannot agree. State procedural rules are often patterned after federal precedents, but they are, nonetheless, rules of state law. In this case, the Pennsylvania Superior Court explicitly stated that it was applying "Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal." As for federal precedents, the court simply noted that state law in the area was "derived from" this Court's 1967 decision in is satisfied, and that the decision on review rested on independent and adequate state grounds. Moreover, it seems rather clear to me, for the reasons stated in Part I of JUSTICE BRENNAN's dissent, that the decision below did not rest alone on that portion of the discussion which could conceivably be considered to be based on Anders. See ante, at 561-563. In either event, there is no basis for concluding that the Pennsylvania Superior Court's decision to remand this case stemmed from its belief that the Federal Constitution required it to do so. But even if I believed that the court relied on some federal precedents, and that the sacrosanct "plain statement" were missing, I would still conclude that this Court lacks jurisdiction over the case. It is unrealistic and quite unfair to expect the judges in the Philadelphia office of the Superior Court of Pennsylvania to acquire and retain familiarity with this Court's jurisprudence concerning the intricacies of our own jurisdiction. The occasions on which the decisions of *571 the judges in that office will be subject to direct review by the Supreme Court of the United States are far too rare to make it appropriate for them to become familiar with the presumption. It is denigrating enough to require the justices of the 50 State Supreme Courts to include such a statement in their decisions, without demanding the same of the 716 state appellate judges or all 20,000 state court judges who decide cases that could conceivably be reviewed by this Court.[*] Before the Commonwealth of Pennsylvania petitioned this Court for a writ of certiorari, it sought review of the Superior Court's judgment in the Supreme Court of Pennsylvania. Had it not done so, this Court could not have accepted jurisdiction of the petition because cases originating in a state court may not be reviewed here unless the judgment was "rendered by the highest court of a State in which a decision could be
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
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The issue presented in this case is whether an award of attorney's fees under 42 U.S. C. 1988 is per se "unreasonable" within the meaning of the statute if it exceeds the amount of damages recovered by the plaintiff in the underlying civil rights action. I Respondents, eight Chicano individuals, attended a party on the evening of August 1, 1975, at the Riverside, California, home of respondents Santos and Jennie Rivera. A large number of unidentified police officers, acting without a warrant, broke up the party using tear gas and, as found by the District Court, "unnecessary physical force." Many of the guests, including four of the respondents, were arrested. The District Court later found that "[t]he party was not creating a disturbance in the community at the time of the break-in." App. 188. Criminal charges against the arrestees were ultimately dismissed for lack of probable cause. On June 4, 1976, respondents sued the city of Riverside, its Chief of Police, and 30 individual police officers under 42 U.S. C. 1981, (3), and 1986 for allegedly violating their First, Fourth, and Fourteenth Amendment rights. The complaint, which also alleged numerous state-law claims, sought damages and declaratory and injunctive relief. On August 5, 1977, 23 of the individual police officers moved for summary judgment; the District Court granted summary judgment in favor of 17 of these officers. The case against the remaining defendants proceeded to trial in September 1980. The jury returned a total of 37 individual verdicts in favor of the respondents and against the city and five individual officers, finding 11 violations of 4 instances of false arrest and imprisonment, and 22 instances of negligence. Respondents were awarded $33,350 in compensatory and punitive *565 damages: $13,300 for their federal claims, and $20,050 for their state-law claims.[1] Respondents also sought attorney's fees and costs under 1988. They requested compensation for 1,946.75 hours expended by their two attorneys at a rate of $125 per hour, and for 84.5 hours expended by law clerks at a rate of $25 per hour, a total of $245,456.25. The District Court found both the hours and rates reasonable, and awarded respondents $245,456.25 in attorney's fees. The court rejected respondents request for certain additional expenses, and for a multiplier sought by respondents to reflect the contingent nature of their success and the high quality of their attorneys' efforts. Petitioners appealed only the attorney's fees award, which the Court of Appeals for the Ninth Circuit affirmed. Petitioners sought a writ of certiorari from this Court. We granted the writ, vacated the Court of Appeals' judgment, and remanded
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
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the writ, vacated the Court of Appeals' judgment, and remanded the case for reconsideration in light of On remand, the District Court held two additional hearings, reviewed additional briefing, and reexamined the record as a whole. The court made extensive findings of fact and conclusions of law, and again concluded that respondents were entitled to an *566 award of $245,456.25 in attorney's fees, based on the same total number of hours expended on the case and the same hourly rates.[2] The court again denied respondents' request for certain expenses and for a multiplier. Petitioners again appealed the fee award. And again, the Court of Appeals affirmed, finding that "the district court correctly reconsidered the case in light of" The Court of Appeals rejected three arguments raised by petitioners. First, the court rejected petitioners' contention that respondents' counsel should not have been compensated for time spent litigating claims other than those upon which respondents ultimately prevailed. Emphasizing that the District Court had determined that respondents' attorneys had "spent no time on claims unrelated to the successful claims," ib the Court of Appeals concluded that "[t]he record supports the district court's findings that all of the plaintiffs' claims involve a `common core of facts' and that the claims involve related legal theories." The court also observed that, consistent with the District Court had "considered the degree of success [achieved by respondents' attorneys] and found a reasonable relationship between the extent of that success and the amount of the fee award." 763 F.2d, at Second, the Court of Appeals rejected the argument that the fee award was excessive because it exceeded the amount of damages awarded by the jury. Examining the legislative history of 1988, the court found no support for the proposition that an award of attorney's fees may not exceed the amount of damages recovered by a prevailing plaintiff. Finally, the *567 court found that the District Court's "extensive findings of fact and conclusions of law" belied petitioners' claim that the District Court had not reviewed the record to determine whether the fee award was justified. The Court of Appeals concluded: "In short, the district court applied the necessary criteria to justify the attorney's fees awarded and explained the reasons for the award clearly and concisely. As required by the district court adequately discussed the extent of the plaintiffs' success and its relationship to the amount of the attorney's fees awarded. The award is well within the discretion of the district court." Petitioners again sought a writ of certiorari from this Court, alleging that the District Court's fee award was not
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
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Court, alleging that the District Court's fee award was not "reasonable" within the meaning of 1988, because it was disproportionate to the amount of damages recovered by respondents. We granted the writ, and now affirm the Court of Appeals. II A In Alyeska Pipeline Service the Court reaffirmed the "American Rule" that, at least absent express statutory authorization to the contrary, each party to a lawsuit ordinarily shall bear its own attorney's fees. In response to Alyeska, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C. 1988, which authorized the district courts to award reasonable attorney's fees to prevailing parties in specified civil rights litigation. While the statute itself does not explain what constitutes a reasonable fee, both the House and Senate Reports accompanying 1988 expressly endorse the analysis set forth in See S. Rep. No. 94-1011, p. 6 (1976) (hereafter Senate Report); H. R. *568 Rep. No. 94-1558, p. 8 (1976) (hereafter House Report). Johnson identifies 12 factors to be considered in calculating a reasonable attorney's fee.[3] announced certain guidelines for calculating a reasonable attorney's fee under 1988. stated that "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." This figure, commonly referred to as the "lodestar," is presumed to be the reasonable fee contemplated by 1988. The opinion cautioned that "[t]he district court should exclude from this initial fee calculation hours that were not `reasonably expended' " on the litigation. then discussed other considerations that might lead the district court to adjust the lodestar figure upward or downward, including the "important factor of the `results obtained.' " 461 U.S., The opinion noted that where a prevailing plaintiff has succeeded on only some of his claims, an award of fees for time expended on unsuccessful claims may not be appropriate. In these situations, the Court held that the judge should consider whether or not the plaintiff's unsuccessful claims were related to the claims on which he succeeded, and whether the plaintiff achieved a level of success that makes it appropriate to award attorney's fees for hours reasonably expended on unsuccessful claims: *569 "In [some] cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
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cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Accordingly, emphasized that "[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee," and that "the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." B Petitioners argue that the District Court failed properly to follow in calculating respondents' fee award. We disagree. The District Court carefully considered the results obtained by respondents pursuant to the instructions set forth in and concluded that respondents were entitled to recover attorney's fees for all hours expended on the litigation. First, the court found that "[t]he amount of time expended by counsel in conducting this litigation was reasonable and reflected sound legal judgment under the circumstances." App. 190.[4] The court also determined that *570 counsel's excellent performances in this case entitled them to be compensated at prevailing market rates, even though they were relatively young when this litigation began. See Johnson, 488 F. 2d, at 718-719 ("If a young attorney demonstrates the skill and ability, he should not be penalized for only recently being admitted to the bar"). The District Court then concluded that it was inappropriate to adjust respondents' fee award downward to account for the fact that respondents had prevailed only on some of their claims, and against only some of the defendants. The court first determined that "it was never actually clear what officer did what until we had gotten through with the whole trial," App. 236, so that "[u]nder the circumstances of this case, it was reasonable for plaintiffs initially to name thirty-one individual defendants as well as the City of Riverside as defendants in this action." The court remarked: "I think every one of the claims that were made were related and if you look at the common core of facts that we had here that you had total success. There was a problem about who was responsible for what and that problem was there all the way through to the time that we concluded the case. Some of the officers couldn't agree about who did what and it is not at all surprising that it would, in my opinion, have been wrong for you *571 not to join all those officers since you yourself did not know precisely who were the officers that were responsible." The court then found that the lawsuit could not "be
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
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The court then found that the lawsuit could not "be viewed as a series of discrete claims," 461 U. S., : "All claims made by plaintiffs were based on a common core of facts. The claims on which plaintiffs did not prevail were closely related to the claims on which they did prevail. The time devoted to claims on which plaintiffs did not prevail cannot reasonably be separated from time devoted to claims on which plaintiffs did prevail." App. 189. The District Court also considered the amount of damages recovered, and determined that the size of the damages award did not imply that respondents' success was limited: "[T]he size of the jury award resulted from (a) the general reluctance of jurors to make large awards against police officers, and (b) the dignified restraint which the plaintiffs exercised in describing their injuries to the jury. For example, although some of the actions of the police would clearly have been insulting and humiliating to even the most insensitive person and were, in the opinion of the Court, intentionally so, plaintiffs did not attempt to play up this aspect of the case." -189.[5] The court paid particular attention to the fact that the case "presented complex and interrelated issues of fact and law," *572 and that "[a] fee award in this civil rights action will advance the public interest," 91: "Counsel for plaintiffs served the public interest by vindicating important constitutional rights. Defendants had engaged in lawless, unconstitutional conduct, and the litigation of plaintiffs' case was necessary to remedy defendants' misconduct. Indeed, the Court was shocked at some of the acts of the police officers in this case and was convinced from the testimony that these acts were motivated by a general hostility to the Chicano community in the area where the incident occurred. The amount of time expended by plaintiffs' counsel in conducting this litigation was clearly reasonable and necessary to serve the public interest as well as the interests of plaintiffs in the vindication of their constitutional rights." Finally, the District Court "focus[ed] on the significance of the overall relief obtained by [respondents] in relation to the hours reasonably expended on the litigation." The court concluded that respondents had "achieved a level of success in this case that makes the total number of hours expended by counsel a proper basis for making the fee award," App. 192: "Counsel for plaintiffs achieved excellent results for their clients, and their accomplishment in this case was outstanding. The amount of time expended by counsel in conducting this litigation was reasonable and reflected sound legal
|
Justice Brennan
| 1,986 | 13 |
majority
|
Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
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in conducting this litigation was reasonable and reflected sound legal judgment under the circumstances." Based on our review of the record, we agree with the Court of Appeals that the District Court's findings were not clearly erroneous. We conclude that the District Court correctly applied the factors announced in in calculating respondents' fee award, and that the court did not abuse its *573 discretion in awarding attorney's fees for all time reasonably spent litigating the case.[6] III Petitioners, joined by the United States as amicus curiae, maintain that 's lodestar approach is inappropriate in civil rights cases where a plaintiff recovers only monetary damages. In these cases, so the argument goes, use of the lodestar may result in fees that exceed the amount of damages recovered and that are therefore unreasonable. Likening such cases to private tort actions, petitioners and the United States submit that attorney's fees in such cases should be proportionate to the amount of damages a plaintiff recovers. Specifically, they suggest that fee awards in damages cases should be modeled upon the contingent-fee arrangements commonly used in personal injury litigation. In this case, assuming a 33% contingency rate, this would entitle *574 respondents to recover approximately $11,000 in attorney's fees. The amount of damages a plaintiff recovers is certainly relevant to the amount of attorney's fees to be awarded under 1988. See Johnson, 488 F. 2d, at 718. It is, however, only one of many factors that a court should consider in calculating an award of attorney's fees. We reject the proposition that fee awards under 1988 should necessarily be proportionate to the amount of damages a civil rights plaintiff actually recovers. A As an initial matter, we reject the notion that a civil rights action for damages constitutes nothing more than a private tort suit benefiting only the individual plaintiffs whose rights were violated. Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. See And, Congress has determined that "the public as a whole has an interest in the vindication of the rights conferred by the statutes enumerated in 1988, over and above the value of a civil rights remedy to a particular plaintiff." n. 4 Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards. In this case, for example, the District Court found that many of petitioners' unlawful acts were "motivated by a general hostility to the Chicano
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
|
https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
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acts were "motivated by a general hostility to the Chicano community," App. 190, and that this litigation therefore served the public interest: "The institutional behavior involved here had to be stopped and nothing short of having a lawsuit like this would have stopped it. [T]he improper motivation which appeared as a result of all of this seemed to *575 me to have pervaded a very broad segment of police officers in the department."[7] In addition, the damages a plaintiff recovers contributes significantly to the deterrence of civil rights violations in the future. See This deterrent effect is particularly evident in the area of individual police misconduct, where injunctive relief generally is unavailable. Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit " `does so not for himself alone but also as a `private attorney general,' vindicating a policy that Congress considered of the highest importance.' " House Report, at 2 ). "If the citizen does not have the resources, his day in court is denied him; the congressional policy which he seeks to assert and vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers." 122 Cong. Rec. 33313 (1976) (remarks of Sen. Tunney). Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief. Rather, Congress made clear that it "intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases and not be reduced because the rights involved may be nonpecuniary in nature." Senate Report, at 6 (emphasis added). "[C]ounsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, `for all time reasonably expended on a matter.'" (emphasis added)). The Senate Report specifically approves of the fee awards made in cases such as Stanford Daily v. Zurcher, 64 F. R. D. 680 ; Van Davis v. County of Los and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 In each of these cases, counsel received substantial attorney's fees despite the fact the plaintiffs sought no monetary damages. Thus, Congress recognized that reasonable attorney's fees under 1988 are not conditioned upon and need not be proportionate to an award of money damages. The lower courts have generally eschewed such a requirement.[8] B A rule that limits attorney's fees in civil rights cases to a proportion of
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
|
attorney's fees in civil rights cases to a proportion of the damages awarded would seriously undermine Congress' purpose in enacting 1988. Congress enacted 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process. See House Report, at 3. These victims ordinarily cannot afford to purchase legal services at the rates set by the private market. See ; Senate Report, at 2 ("In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer"); see *577 also 122 Cong. Rec. 35127 (1976) (remarks of Rep. Holtzman) ("Plaintiffs who suffer discrimination and other infringements of their civil rights are usually not wealthy people"); ("Most Americans. cannot afford to hire a lawyer if their constitutional rights are violated or if they are the victims of illegal discrimination"); ("[R]ight now the vindication of important congressional policies in the vital area of civil rights is made to depend upon the financial resources of those least able to promote them"). Moreover, the contingent fee arrangements that make legal services available to many victims of personal injuries would often not encourage lawyers to accept civil rights cases, which frequently involve substantial expenditures of time and effort but produce only small monetary recoveries. As the House Report states: "[W]hile damages are theoretically available under the statutes covered by [ 1988], it should be observed that, in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy. Consequently, awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected." House Report, at 9. (emphasis added; footnote omitted). See also 122 Cong. Rec., at 33314 (remarks of Sen. Kennedy) ("[C]ivil rights cases unlike tort or antitrust cases do not provide the prevailing plaintiff with a large recovery from which he can pay his lawyer"). Congress enacted 1988 specifically to enable plaintiffs to enforce the civil rights laws even where the amount of damages at stake would not otherwise make it feasible for them to do so: "[F]ee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate *578 the important Congressional policies which these laws contain. ". If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
|
violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court." Senate Report, at 2. See also A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. This is totally inconsistent with Congress' purpose in enacting 1988. Congress recognized that private sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case.[9] *579 This case illustrates why the enforcement of civil rights laws cannot be entrusted to private-sector fee arrangements. The District Court observed that "[g]iven the nature of this lawsuit and the type of defense presented, many attorneys in the community would have been reluctant to institute and to continue to prosecute this action." App. 189. The court concluded, moreover, that "[c]ounsel for plaintiffs achieved excellent results for their clients, and their accomplishment in this case was outstanding. The amount of time expended by counsel in conducting this litigation was reasonable and reflected sound legal judgment under the circumstances." Nevertheless, petitioners suggest that respondents' counsel should be compensated for only a small fraction of the actual time spent litigating the case. In light of the difficult nature of the issues presented by this lawsuit and the low pecuniary value of many of the rights respondents sought to vindicate, it is highly unlikely that the prospect of a fee equal to a fraction of the damages respondents might recover would have been sufficient to attract competent counsel.[10] Moreover, since counsel might not have found it economically feasible to expend the amount of time respondents' counsel found necessary to litigate the case properly, it is even less likely that counsel would have achieved the excellent results that respondents' counsel obtained here. Thus, had respondents had to rely on private-sector fee arrangements, they might well have been unable to obtain redress for their *580 grievances. It is precisely for this reason that Congress enacted 1988. IV We agree with petitioners that Congress intended that statutory fee awards be "adequate to attract competent counsel, but not produce windfalls to attorneys." Senate Report, at 6. However, we find no evidence that Congress intended that, in order to avoid "windfalls to attorneys," attorney's fees be proportionate to the amount of damages
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Justice Brennan
| 1,986 | 13 |
majority
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Riverside v. Rivera
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https://www.courtlistener.com/opinion/111730/riverside-v-rivera/
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attorneys," attorney's fees be proportionate to the amount of damages a civil rights plaintiff might recover. Rather, there already exists a wide range of safeguards designed to protect civil rights defendants against the possibility of excessive fee awards. Both the House and Senate Reports identify standards for courts to follow in awarding and calculating attorney's fees, see ibid.; House Report, at 8; these standards are designed to ensure that attorneys are compensated only for time reasonably expended on a case. The district court has the discretion to deny fees to prevailing plaintiffs under special circumstances, see (citing Senate Report, at 4), and to award attorney's fees against plaintiffs who litigate frivolous or vexatious claims. See Christiansburg Garment ; ; House Report, at 6-7. Furthermore, we have held that a civil rights defendant is not liable for attorney's fees incurred after a pretrial settlement offer, where the judgment recovered by the plaintiff is less than the offer.[11] We believe that *581 these safeguards adequately protect against the possibility that 1988 might produce a "windfall" to civil rights attorneys. In the absence of any indication that Congress intended to adopt a strict rule that attorney's fees under 1988 be proportionate to damages recovered, we decline to adopt such a rule ourselves.[12] The judgment of the Court of Appeals is hereby Affirmed. JUSTICE POWELL, concurring in the judgment.
|
Justice Thomas
| 2,005 | 1 |
second_dissenting
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Gonzales v. Raich
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https://www.courtlistener.com/opinion/799995/gonzales-v-raich/
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Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate *58 this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers. I Respondents' local cultivation and consumption of marijuana is not "Commerce among the several States." U. S. Const., Art. I, 8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art. I, 8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct. A As I explained at length in United the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. The Clause's text, structure, and history all indicate that, at the time of the founding, the term "`commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange not all economic or gainful activity that has some attenuated connection to trade or exchange. ; Barnett, The Original Meaning of the Commerce Clause, The term "commerce" commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, Even the majority does not argue that respondents' conduct is itself "Commerce among the several States," Art. I, 8, cl. 3. Ante, at 22. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value.
|
Justice Thomas
| 2,005 | 1 |
second_dissenting
|
Gonzales v. Raich
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https://www.courtlistener.com/opinion/799995/gonzales-v-raich/
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activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. On this traditional understanding of "commerce," the Controlled Substances Act (CSA), 21 U.S. C. 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market intrastate or interstate, noncommercial or commercial for marijuana. Respondents are correct that the CSA exceeds Congress' commerce power as applied to their conduct, which is purely intrastate and noncommercial. B More difficult, however, is whether the CSA is a valid exercise of Congress' power to enact laws that are "necessary and proper for carrying into Execution" its power to regulate interstate Art. I, 8, cl. 18. The Necessary *60 and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.[1] Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.[2] In this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the [C]onstitution." ; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, pp. 163-164 The CSA, as applied to respondents' conduct, is not a valid exercise of Congress' power under the Necessary and Proper Clause. 1 Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state *61 lines. The Government contends that banning Monson and Raich's intrastate drug activity is "necessary and proper for carrying into Execution" its regulation of interstate drug trafficking. Art. I, 8, cl. 18. See 21 U.S. C. 801(6). However, in order to be "necessary," the intrastate ban must be more than "a reasonable means [of] effectuat[ing]
|
Justice Thomas
| 2,005 | 1 |
second_dissenting
|
Gonzales v. Raich
|
https://www.courtlistener.com/opinion/799995/gonzales-v-raich/
|
ban must be more than "a reasonable means [of] effectuat[ing] the regulation of interstate " Brief for Petitioners 14; see ante, at 22 (majority opinion) (employing rational-basis review). It must be "plainly adapted" to regulating interstate marijuana trafficking in other words, there must be an "obvious, simple, and direct relation" between the intrastate ban and the regulation of interstate ; see also United On its face, a ban on the intrastate cultivation, possession, and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. Ante, at 12-13, 22 (majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is "necessary and proper" as applied to medical marijuana users like respondents.[3] Respondents are not regulable simply because they belong to a large class (local growers and users of marijuana) that *62 Congress might need to reach, if they also belong to a distinct and separable subclass (local growers and users of state-authorized, medical marijuana) that does not undermine the CSA's interstate ban. Ante, at 47-48 The Court of Appeals found that respondents' "limited use is clearly distinct from the broader illicit drug market," because "th[eir] medicinal marijuana is not intended for, nor does it enter, the stream of " If that is generally true of individuals who grow and use marijuana for medical purposes under state law, then even assuming Congress has "obvious" and "plain" reasons why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those reasons applies to medical marijuana patients like Monson and Raich. California's Compassionate Use Act sets respondents' conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to "seriously ill Californians," Cal. Health & Safety Code Ann. 11362.5(b)(1)(A) and prohibits "the diversion of marijuana for nonmedical purposes," 11362.5(b)(2).[4] California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, 11362.5(b)(1)(A), and that he obtain a physician's recommendation or approval, 11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. 11362.XXX-XXXXX.76. Moreover, the Medical Board of California has issued guidelines for physicians' cannabis recommendations, and it sanctions physicians
|
Justice Thomas
| 2,005 | 1 |
second_dissenting
|
Gonzales v. Raich
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https://www.courtlistener.com/opinion/799995/gonzales-v-raich/
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issued guidelines for physicians' cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. *63 See, e. g., This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws, and there is no reason to depart from that presumption here: Nothing suggests that California's controls are ineffective. The scant evidence that exists suggests that few people the vast majority of whom are aged 40 or older register to use medical marijuana. General Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow Use for Medical Purposes 22-23 http://www. gao.gov/new.items/d03189.pdf (all Internet materials as visited June 3, 2005, and available in Clerk of Court's case file). In part because of the low incidence of medical marijuana use, many law enforcement officials report that the introduction of medical marijuana laws has not affected their law enforcement efforts. These controls belie the Government's assertion that placing medical marijuana outside the CSA's reach "would prevent effective enforcement of the interstate ban on drug trafficking." Brief for Petitioners 33. Enforcement of the CSA can continue as it did prior to the Compassionate Use Act. Only now, a qualified patient could avoid arrest or prosecution by presenting his identification card to law enforcement officers. In the event that a qualified patient is arrested for possession or his cannabis is seized, he could seek to prove as an affirmative defense that, in conformity with state law, he possessed or cultivated small quantities of marijuana intrastate solely for personal medical use. ; Moreover, under the CSA, certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use drugs like morphine *64 and amphetamines are available by prescription. 21 U.S. C. 812(b)(2)(A)-(B); 21 CFR 1308.12 No one argues that permitting use of these drugs under medical supervision has undermined the CSA's restrictions. But even assuming that States' controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. Executive Office of the President, Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 http://www. whitehousedrugpolicy.gov/publications/factsht/marijuana/ index.html. It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across-the-board ban essential to policing interstate drug trafficking. 21 U.S.C. 801(6). But as JUSTICE O'CONNOR points out, Congress presented no
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second_dissenting
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Gonzales v. Raich
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801(6). But as JUSTICE O'CONNOR points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power. Ante, at 53-55 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the necessity of its enactments. In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress' goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress' aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana. 2 Even assuming the CSA's ban on locally cultivated and consumed marijuana is "necessary," that does not mean it is *65 also "proper." The means selected by Congress to regulate interstate commerce cannot be "prohibited" by, or inconsistent with the "letter and spirit" of, the Constitution. McCulloch, 4 Wheat., In I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the 600 This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers as expanded by the Necessary and Proper Clause have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropriat[e] state police powers under the guise of regulating " United Even if Congress may regulate purely intrastate activity when essential to exercising some enumerated power, see 9 Wall., at ; but see Barnett, The Original Meaning of the Necessary and Proper Clause, Congress may not use its incidental authority to subvert basic principles of federalism and dual sovereignty. ; ; ; The Federalist No. 33, pp. 204-205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter The Federalist). *66 Here, Congress has encroached on States' traditional police powers to define the criminal law and to protect the health, safety, and welfare of their ; Hillsborough Further, the Government's rationale
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and welfare of their ; Hillsborough Further, the Government's rationale that it may regulate the production or possession of any commodity for which there is an interstate market threatens to remove the remaining vestiges of States' traditional police powers. See Brief for Petitioners 21-22; cf. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St. L. J. 825, 826, 841 (describing both the relative recency of a large percentage of federal crimes and the lack of a relationship between some of these crimes and interstate commerce). This would convert the Necessary and Proper Clause into precisely what Chief Justice Marshall did not envision, a "pretext for the accomplishment of objects not intrusted to the government." McCulloch, *67 II The majority advances three reasons why the CSA is a legitimate exercise of Congress' authority under the Commerce Clause: First, respondents' conduct, taken in the aggregate, may substantially affect interstate commerce, ante, at 22; second, regulation of respondents' conduct is essential to regulating the interstate marijuana market, ante, at 24-25; and, third, regulation of respondents' conduct is incidental to regulating the interstate marijuana market, ante, at 22. JUSTICE O'CONNOR explains why the majority's reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority's justifications, however, suffer from even more fundamental flaws. A The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate The majority's decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the constitutional design. at The majority's treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce, any more than activities that do not fall within, but that affect, the subjects of its other Article I powers. Whatever additional latitude the Necessary and Proper Clause the question is whether Congress' legislation is essential to the regulation of interstate commerce itself not whether the legislation extends only to economic *68 activities that substantially affect interstate ; ante, at 37 (SCALIA, J., concurring in judgment). The majority's treatment of the substantial effects test is malleable, because the majority expands the relevant conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana), the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no demonstrable effect on the
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second_dissenting
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and possess medical marijuana exert no demonstrable effect on the interstate drug The majority ignores that whether a particular activity substantially affects interstate commerce and thus comes within Congress' reach on the majority's approach can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 47-48 For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug trade.[6] The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can *69 regulate noneconomic activity that substantially affects interstate 529 U. S., at ; at To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the "`the production, distribution, and consumption of commodities.'"[7]Ante, at 25 (quoting Webster's Third New International Dictionary 720 (1966) (hereinafter Webster's 3d)). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 49-50 If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite." The Federalist No. 45, at 313 (J. Madison). Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate "Commerce," and respondents' conduct does not qualify under any definition of that term.[8] The majority's opinion *70 only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from "`[c]ommerce,'" ante, at 5, to "commercial" and "economic" activity, ante, at 23, and finally to all "production, distribution, and consumption" of goods or services for which there is an "established interstate market," ante, at 26. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it. The majority's rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. Ante, at 18-19; -574 The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. ; Letter from J. Madison to
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unfamiliar to the Framers. ; Letter from J. Madison to S. Roane in 3 The Founders' Constitution 259-260 (P. Kurland & R. Lerner eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce not to mention a host of local activities, like mere drug possession, that are not commercial. One searches the Court's opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that "`[t]he Constitution created a Federal Government of limited powers.'" New 505 U.S. 1, That is why today's decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of "Commerce among the several States." Congress may regulate interstate commerce not things that affect it, even when summed together, unless truly "necessary and proper" to regulating interstate B The majority also inconsistently contends that regulating respondents' conduct is both incidental and essential to a comprehensive legislative scheme. Ante, at 22, 24-25. I have already explained why the CSA's ban on local activity is not However, the majority further claims that, because the CSA covers a great deal of interstate commerce, it "is of no moment" if it also "ensnares some purely intrastate activity." Ante, at 22. So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause. Nevertheless, the majority terms this the "pivotal' distinction between the present case and and Ante, at 23. In and the parties asserted facial challenges, claiming "that a particular statute or provision fell outside Congress' commerce power in its entirety." Ante, at 23. Here, by contrast, respondents claim only that the CSA falls outside Congress'
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contrast, respondents claim only that the CSA falls outside Congress' commerce power as applied *72 to their individual conduct. According to the majority, while courts may set aside whole statutes or provisions, they may not "excise individual applications of a concededly valid statutory scheme." Ante, at 23; see also ; It is true that if respondents' conduct is part of a "class of activities and that class is within the reach of federal power," at then respondents may not point to the de minimis effect of their own personal conduct on the interstate drug market, Ante, at 47 But that begs the question at issue: whether respondents' "class of activities" is "within the reach of federal power," which depends in turn on whether the class is defined at a low or a high level of If medical marijuana patients like Monson and Raich largely stand outside the interstate drug market, then courts must excise them from the CSA's coverage. Congress expressly provided that if "a provision [of the CSA] is held invalid in one of more of its applications, the provision shall remain in effect in all its valid applications that are severable." 21 U.S. C. 901 (emphasis added); see also United Even in the absence of an express severability provision, it is implausible that this Court could set aside entire portions of the United States Code as outside Congress' power in and but it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress' power. This Court has regularly entertained as-applied challenges under constitutional provisions, see United including the Commerce Clause, see ; Heart of Atlanta *73 Motel, ; There is no reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress' overreaching on a case-by-case basis. The CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental. If the majority is correct that and are distinct because they were facial challenges to "particular statute[s] or provision[s]," ante, at 23, then congressional power turns on the manner in which Congress packages legislation. Under the majority's reasoning, Congress could not enact either as a single-subject statute or as a separate provision in the CSA a prohibition on the intrastate possession or cultivation of marijuana. Nor could it enact an intrastate ban simply to supplement existing drug regulations. However, that same prohibition is perfectly constitutional when integrated into a piece of legislation that reaches other regulable conduct. -601
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a piece of legislation that reaches other regulable conduct. -601 Finally, the majority's view that because some of the CSA's applications are constitutional, they must all be constitutional undermines its reliance on the substantial effects test. The intrastate conduct swept within a general regulatory scheme may or may not have a substantial effect on the relevant interstate "[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on " The breadth of legislation that Congress enacts says nothing about whether the intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the scheme. Because medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis *74 into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how broadly it drafts the CSA. * * * The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of "displac[ing] state regulation in areas of traditional state concern," The majority's rush to embrace federal power "is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union." United Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.
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