CRS Annotated Constitution

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Eminent Domain

The due process clause of the Fourteenth Amendment has been held to require that when a state or local governmental body, or a private body exercising delegated power, takes private property it must provide just compensation and take only for a public purpose. Applicable principles are discussed under the Fifth Amendment.181


Substantive Due Process and Noneconomic Liberty

At the heyday of economic substantive due process, the Court ruled in two cases which, while they also involved property, promised substantially to extend judicial supervision of the reasonableness of legislation. This promise was not realized, but later cases brought forth an avalanche of exposition. In Meyer v. Nebraska,182 the Court struck down a state law forbidding the teaching in any school in the State, public or private, of any modern foreign language, other than English, to any child who had not successfully finished the eighth grade; in Pierce v. Society of Sisters,183 it declared unconstitutional a state law which required public school education of children aged eight to sixteen. Both cases involved, as noted, property rights which the Court asserted were protected; the statute in Meyer interfered with the occupation of a teacher of German who had been convicted of teaching that language, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties.184 Yet in both cases the Court also permitted these persons adversely affected in their property interests to represent the interests of parents and children in the assertion of other aspects of “liberty” of which they could not be denied.

“Without doubt,” Justice McReynolds said, liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his[p.1667]own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”185 The right of the parents to have their children instructed in a foreign language was “within the liberty of the [Fourteenth] Amendment.”186 Meyer was relied on in Pierce by the Court in asserting that the statute there “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”187

Other assertions of the liberty to be free from compulsory state provisions proved unsuccessful,188 although dicta in these cases continued to broadly define liberty.189 And in Loving v. Virginia,190 a statute prohibiting interracial marriage was held to deny due process. Marriage was termed “one of the ‘basic civil rights of man”’ and a “fundamental freedom.” “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The classification of marriage rights on a racial basis was “unsupportable.” But the expansion of the Bill of Rights to restrict state action, especially the religion and free expression provisions of the First Amendment, afforded the Court an opportunity to base certain decisions voiding state policies on these grounds rather than on due process.191

In Poe v. Ullman,192 Justice Harlan advocated the application of a due process standard of reasonableness—the same standard he[p.1668]would have applied to test economic legislation—to a Connecticut statute banning the use of contraceptives, even by married couples. According to the Justice, due process is limited neither to procedural guarantees nor restricted to the rights enumerated in the first eight Amendments of the Bill of Rights, but is rather “a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions.” The liberty protected by the clause “is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Applying a lengthy analysis, he concluded that the statute infringed upon a fundamental liberty without the showing of a justification which would support the intrusion. Yet, when the same issue returned to the Court, a majority of the Justices, rejecting reliance on substantive due process,193 decided it on the basis of the statute’s invasion of privacy, a “penumbral” right protected by a matrix of constitutional provisions.194 The analysis, however, approached the matter in terms, and in reliance on cases, reminiscent of substantive due process, although the separate concurrences of Justices Harlan and White specifically based on substantive due process,195 indicates that the majority’s position was at least definitionally different. Subsequent cases, functionally grounded in equal protection analysis, relied in great degree upon a view of rationality and reasonableness not too different from Justice Harlan’s dissent in Poe v. Ullman.196

The Court remains divided over how broadly to define a liberty interest. In Bowers v. Hardwick,197 for example, the Court majority found no right to engage in homosexual sodomy, and rejected the dissent’s suggestion that focus should instead be placed on a right to privacy and autonomy in matters of sexual intimacy. Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D.,[p.1669]involving the rights of an adulterous biological father to establish paternity and to associate with his child.198 Justice Scalia, joined only by Chief Justice Rehnquist in this part of the plurality decision, argued for “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”199 Dissenting Justice Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should “ask whether the specific parent–child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of ‘liberty.”’200 The resurgence of substantive due process reasoning became evident upon the Court’s confrontation with cases raising the constitutionality of laws proscribing or limiting abortions.


181 For analysis of the law of eminent domain, see supra, pp. 1369–95.
182 262 U.S. 390 (1923) . Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923) .
183 268 U.S. 510 (1925) .
184 Meyer v. Nebraska, 262 U.S. 390, 400 (1923) ; Pierce v. Society of Sisters, 268 U.S. 510, 531, 533, 534 (1928) .

Supplement: [P. 1666, add to n.184:]

The Court has subsequently made clear that these cases dealt with “a complete prohibition of the right to engage in a calling,” holding that “a brief interruption” did not constitute a constitutional violation. Conn v. Gabbert, 526 U.S. 286, 292 (2000) .

185 262U.S. at 399 262U.S. at 399.
186 Id. at 400.
187 268U.S. at 534–35 268U.S. at 534–35.
188 E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) ; Zucht v. King, 260 U.S. 174 (1922) (compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of insanity or imbecility); Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270 (1940) (institutionalization of habitual sexual offenders as psychopathic personalities).
189 See also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage and procreation are among “the basic civil rights of man”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (care and nurture of children by the family are within “the private realm of family life which the state cannot enter”).
190 388 U.S. 1, 12 (1967) .
191 Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482 (1965) , Justice Douglas reinterpreted Meyer and Pierce as having been based on the First Amendment. Note that in Epperson v. Arkansas, 393 U.S. 97, 105 (1968) , and Tinker v. Des Moines School District, 393 U.S. 503, 506–07 (1969) , Justice Fortas for the Court approvingly noted the due process basis of Meyer and Pierce while deciding both cases on First Amendment grounds.
192 367 U.S. 497, 522, 539–45 (1961) . Justice Douglas, also dissenting, relied on a due process analysis, which began with the texts of the first eight Amendments as the basis of fundamental due process and continued into the “emanations” from this as also protected. Id. at 509.
193 “We do not sit as a super–legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (opinion of Court by Justice Douglas).
194 Supra, pp. 1504–05.
195 381U.S. at 499, 502 381U.S. at 499, 502.
196 Eisenstadt v. Baird, 405 U.S. 438 (1972) , is the principal case. See also Stanley v. Illinois, 405 U.S. 645 (1972) .
197 478 U.S. 186 (1986) .
198 491 U.S. 110 (1989) . Five Justices agreed that a liberty interest was implicated, but the Court ruled that California’s procedures for establishing paternity did not unconstitutionally impinge on that interest.
199 Id. at 128 n.6.
200 Id. at 142.
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