{"text":"431 U.S. 209 (1977) ABOOD ET AL. v. DETROIT BOARD OF EDUCATION ET AL. No. 75-1153. Supreme Court of United States. Argued November 9, 1976. Decided May 23, 1977. APPEAL FROM THE COURT OF APPEALS OF MICHIGAN. *211 Sylvester Petro argued the cause for appellants. With him on the briefs was John L. Kilcullen. Theodore Sachs argued the cause and filed a brief for appellees.[*] MR. JUSTICE STEWART delivered the opinion of the Court. The State of Michigan has enacted legislation authorizing a system for union representation of local governmental employees. A union and a local government employer are specifically permitted to agree to an \"agency shop\" arrangement, whereby every employee represented by a union\u2014 even though not a union member\u2014must pay to the union, as a condition of employment, a service fee equal in amount to union dues. The issue before us is whether this arrangement violates the constitutional rights of government employees who object to public-sector unions as such or to various union activities financed by the compulsory service fees.\nI After a secret ballot election, the Detroit Federation of Teachers (Union) was certified in 1967 pursuant to Michigan *212 law as the exclusive representative of teachers employed by the Detroit Board of Education (Board).[1] The Union and the Board thereafter concluded a collective-bargaining agreement effective from July 1, 1969, to July 1, 1971. Among the agreement's provisions was an \"agency shop\" clause, requiring every teacher who had not become a Union member within 60 days of hire (or within 60 days of January 26, 1970, the effective date of the clause) to pay the Union a service charge equal to the regular dues required of Union members. A teacher who failed to meet this obligation was subject to discharge. Nothing in the agreement, however, required any teacher to join the Union, espouse the cause of unionism, or participate in any other way in Union affairs. On November 7, 1969\u2014more than two months before the agency-shop clause was to become effective\u2014Christine Warczak and a number of other named teachers filed a class action in a state court, naming as defendants the Board, the Union, and several Union officials. Their complaint, as amended, alleged that they were unwilling or had refused to pay dues[2] and that they opposed collective bargaining in *213 the public sector. The amended complaint further alleged that the Union \"carries on various social activities for the benefit of its members which are not available to non-members as a matter of right,\" and that the Union is engaged \"in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice, and which are not and will not be collective bargaining activities, i. e., the negotiation and administration of contracts with Defendant Board, and that a substantial part of the sums required to be paid under said Agency Shop Clause are used and will continue to be used for the support of such activities and programs, and not solely for the purpose of defraying the cost of Defendant Federation of its activities as bargaining agent for teachers employed by Defendant Board.\"[3] The complaint prayed that the agency-shop clause be declared invalid under state law and also under the United States Constitution as a deprivation of, inter alia, the plaintiffs' freedom of association protected by the First and Fourteenth Amendments, and for such further relief as might be deemed appropriate. Upon the defendants' motion for summary judgment, the trial court dismissed the action for failure to state a claim upon which relief could be granted.[4]Warczak v. Board of *214 Education, 73 LRRM 2237 (Cir. Ct. Wayne County). The plaintiffs appealed, and while their appeal was pending the Michigan Supreme Court ruled in Smigel v. Southgate Community School Dist., 388 Mich. 531, 202 N.W.2d 305, that state law prohibited an agency shop in the public sector. Accordingly, the judgment in the Warczak case was vacated and remanded to the trial court for further proceedings consistent with the Smigel decision. Meanwhile, D. Louis Abood and other named teachers had filed a separate action in the same state trial court. The allegations in the complaint were virtually identical to those in Warczak,[5] and similar relief was requested.[6] This second action was held in abeyance pending disposition of the Warczak appeal, and when that case was remanded the two cases were consolidated in the trial court for consideration of the defendants' renewed motion for summary judgment. On November 5, 1973, that motion was granted. The trial court noted that following the Smigel decision, the Michigan Legislature had in 1973 amended its Public Employment Relations Act so as expressly to authorize an agency shop. 1973 Mich. Pub. Acts, No.25, codified as Mich. Comp. Laws \u00a7 423.210 (1) (c).[7] This amendment was applied retroactively *215 by the trial court to validate the agency-shop clause predating 1973 as a matter of state law, and the court ruled further that such a clause does not violate the Federal Constitution. The plaintiffs' appeals were consolidated by the Michigan Court of Appeals, which ruled that the trial court had erred in giving retroactive application to the 1973 legislative amendment. The appellate court proceeded, however, to consider the constitutionality of the agency-shop clause, and upheld its facial validity on the authority of this Court's decision in Railway Employees' Dept. v. Hanson, 351 U.S. 225, which upheld the constitutionality under the First Amendment of a union-shop clause, authorized by the Railway Labor Act, requiring financial support of the exclusive bargaining representative by every member of the bargaining unit. Id., at 238. Nothing, however, that Michigan law also permits union expenditures for legislative lobbying and in support of political candidates, the state appellate court identified an issue explicitly not considered in Hanson\u2014the constitutionality of using compulsory service charges to further \"political purposes\" unrelated to collective bargaining. Although recognizing that such expenditures \"could violate plaintiffs' First and Fourteenth Amendment rights,\" the court read this Court's more recent decisions to require that an employee who seeks to vindicate such rights must \"make known to the union those causes and candidates to which he objects.\" Since the complaints had failed to allege that any such notification had been given, the court held that the plaintiffs were not entitled to restitution of any portion of the service charges. The trial court's error on the retroactivity question, however, led the appellate court to reverse and remand *216 the case.[8] 60 Mich. App. 92, 230 N.W.2d 322. After the Supreme Court of Michigan denied review, the plaintiffs appealed to this Court, 28 U.S. C. \u00a7 1257 (2), and we noted probable jurisdiction, 425 U.S. 949.[9] *217 II A Consideration of the question whether an agency-shop provision in a collective-bargaining agreement covering governmental employees is, as such, constitutionally valid must begin with two cases in this Court that on their face go far toward resolving the issue. The cases are Railway Employees' Dept. v. Hanson, supra, and Machinists v. Street, 367 U.S. 740. In the Hanson case a group of railroad employees brought an action in a Nebraska court to enjoin enforcement of a union-shop agreement.[10] The challenged clause was authorized, *218 and indeed shielded from any attempt by a State to prohibit it, by the Railway Labor Act, 45 U.S. C. \u00a7 152 Eleventh.[11] The trial court granted the relief requested. The Nebraska Supreme Court upheld the injunction on the ground that employees who disagreed with the objectives promoted by union expenditures were deprived of the freedom of association protected by the First Amendment. This Court agreed that \"justiciable questions under the First and Fifth Amendments were presented,\" 351 U.S., at 231,[12]*219 but reversed the judgment of the Nebraska Supreme Court on the merits. Acknowledging that \"[m]uch might be said pro and con\" about the union shop as a policy matter, the Court noted that it is Congress that is charged with identifying \"[t]he ingredients of industrial peace and stabilized labor-management relations . . . .\" Id., at 233-234. Congress determined that it would promote peaceful labor relations to permit a union and an employer to conclude an agreement requiring employees who obtain the benefit of union representation to share its cost, and that legislative judgment was surely an allowable one. Id., at 235. The record in Hanson contained no evidence that union dues were used to force ideological conformity or otherwise to impair the free expression of employees, and the Court noted that \"[i]f `assessments' are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented.\" Ibid. (footnote omitted). But the Court squarely held that \"the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work . . . does not violate . . . the First . . . Amendmen[t].\" Id., at 238. The Court faced a similar question several years later in the Street case, which also involved a challenge to the constitutionality of a union shop authorized by the Railway Labor Act. In Street, however, the record contained findings that the union treasury to which all employees were required to contribute had been used \"to finance the campaigns of candidates for federal and state offices whom [the plaintiffs] opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which [they] disagreed.\" 367 U.S., at 744. The Court recognized, id., at 749, that these findings presented constitutional \"questions of the utmost gravity\" not *220 decided in Hanson, and therefore considered whether the Act could fairly be construed to avoid these constitutional issues. 367 U.S., at 749-750.[13] The Court concluded that the Act could be so construed, since only expenditures related to the union's functions in negotiating and administering the collective-bargaining agreement and adjusting grievances and disputes fell within \"the reasons . . . accepted by Congress why authority to make union-shop agreements was justified,\" id., at 768. The Court ruled, therefore, that the use of compulsory union dues for political purposes violated the Act itself. Nonetheless, it found that an injunction against enforcement of the union-shop agreement as such was impermissible under Hanson, and remanded the case to the Supreme Court of Georgia so that a more limited remedy could be devised. The holding in Hanson, as elaborated in Street, reflects familiar doctrines in the federal labor laws. The principle of exclusive union representation, which underlies the National Labor Relations Act[14] as well as the Railway Labor Act, is a central element in the congressional structuring of industrial relations. E. g., Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50, 62-63; NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180; Medo Corp. v. NLRB, 321 U.S. 678, 684-685; Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 545-549. The designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment. It prevents inter-union rivalries from creating *221 dissension within the work force and eliminating the advantages to the employee of collectivization. It also frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations. See generally Emporium Capwell Co. v. Western Addition Community Org., supra, at 67-70; S. Rep. No. 573, 74th Cong., 1st Sess., 13 (1935). The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money. See Street, 367 U. S., at 760. The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged \"fairly and equitably to represent all employees . . . , union and non-union,\" within the relevant unit. Id., at 761.[15] A union-shop *222 arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become \"free riders\"\u2014to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees. Ibid.; see Oil Workers v. Mobil Oil Corp., 426 U.S. 407, 415-416; NLRB v. General Motors, 373 U.S. 734, 740-741. To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union's wage policy because it violates guidelines designed to limit inflation, or might object to the union's seeking a clause in the collective-bargaining agreement proscribing racial discrimination. The examples could be multiplied. To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.[16] But the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. \"The *223 furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his financial support merely because he disagrees with the group's strategy. If that were allowed, we would be reversing the Hanson case, sub silentio.\" Machinists v. Street, 367 U. S., at 778 (Douglas, J., concurring).\nB The National Labor Relations Act leaves regulation of the labor relations of state and local governments to the States. See 29 U.S. C. \u00a7 152 (2). Michigan has chosen to establish for local government units a regulatory scheme which, although not identical in every respect to the NLRA or the Railway Labor Act,[17] is broadly modeled after federal law. E. g., Rockwell v. Crestwood School Dist. Bd. of Ed., 393 Mich. 616, 635-636, 227 N.W.2d 736, 744-745, appeal dismissed sub nom. Crestwood Ed. Assn. v. Board of Ed. of Crestwood, 427 U.S. 901; Detroit Police Officers Assn. v. Detroit, 391 Mich. 44, 53, 214 N.W.2d 803, 807-808; Michigan Employment Relations Comm'n v. Reeths-Puffer School Dist., 391 Mich. 253, 260, and n. 11, 215 N.W.2d 672, 675, and n. 11. Under Michigan law employees of local government units enjoy rights parallel to those protected under federal legislation: the rights to self-organization and to bargain collectively, Mich. Comp. Laws \u00a7\u00a7 423.209, 423.215 (1970); see 29 U.S. C. \u00a7 157; 45 U.S. C. \u00a7 152 Fourth; and the right to secret-ballot representation elections, Mich. Comp. Laws \u00a7 423.212 (1970); see 29 U.S. C. \u00a7 159 (e) (1); 45 U.S. C. \u00a7 152 Ninth. Several aspects of Michigan law that mirror provisions of the Railway Labor Act are of particular importance here. A union that obtains the support of a majority of employees *224 in the appropriate bargaining unit is designated the exclusive representative of those employees. Mich. Comp. Laws \u00a7 423.211 (1970).[18] A union so designated is under a duty of fair representation to all employees in the unit, whether or not union members. E. g., Lowe v. Hotel & Restaurant Employees Local 705, 389 Mich. 123, 145-152, 205 N.W.2d 167, 177-180; Wayne County Community College Federation of Teachers Local 2000 v. Poe, 1976 Mich. Emp. Rel. Comm'n 347, 350-353; Local 836, AFSCME v. Solomon, 1976 Mich. Emp. Rel. Comm'n 84, 89. And in carrying out all of its various responsibilities, a recognized union may seek to have an agency-shop clause included in a collective-bargaining agreement. Mich. Comp. Laws \u00a7 423.210 (1) (c) (1970). Indeed, the 1973 amendment to the Michigan law[19] was specifically designed to authorize agency shops in order that \"employees in the bargaining unit . . . share fairly in the financial support of their exclusive bargaining representative. . . .\" \u00a7 423.210 (2). The governmental interests advanced by the agency-shop provision in the Michigan statute are much the same as those promoted by similar provisions in federal labor law. The confusion and conflict that could arise if rival teachers' unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer's agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid. See Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 178 (BRENNAN. J., concurring in judgment). The desirability of labor peace is no less important in the public sector, nor is the risk of \"free riders\" any smaller. Our province is not to judge the wisdom of Michigan's *225 decision to authorize the agency shop in public employment.[20] Rather, it is to adjudicate the constitutionality of that decision. The same important government interests recognized in the Hanson and Street cases presumptively support the impingement upon associational freedom created by the agency shop here at issue. Thus, insofar as the service charge is used to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance *226 adjustment, those two decisions of this Court appear to require validation of the agency-shop agreement before us. While recognizing the apparent precedential weight of the Hanson and Street cases, the appellants advance two reasons why those decisions should not control decision of the present case. First, the appellants note that it is government employment that is involved here, thus directly implicating constitutional guarantees, in contrast to the private employment that was the subject of the Hanson and Street decisions. Second, the appellants say that in the public sector collective bargaining itself is inherently \"political,\" and that to require them to give financial support to it is to require the \"ideological conformity\" that the Court expressly found absent in the Hanson case. 351 U.S., at 238. We find neither argument persuasive. Because it is employment by the State that is here involved, the appellants suggest that this case is governed by a long line of decisions holding that public employment cannot be conditioned upon the surrender of First Amendment rights.[21] But, while the actions of public employers surely constitute \"state action,\" the union shop, as authorized by the Railway Labor Act, also was found to result from governmental action in Hanson.[22] The plaintiffs' claims in Hanson failed, not because there was no governmental action, but because there was no First Amendment violation.[23] The *227 appellants' reliance on the \"unconstitutional conditions\" doctrine is therefore misplaced. The appellants' second argument is that in any event collective bargaining in the public sector is inherently \"political\" and thus requires a different result under the First and Fourteenth Amendments. This contention rests upon the important and often-noted differences in the nature of collective bargaining in the public and private sectors.[24] A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and *228 where they are they tend to be regarded as in some sense \"essential\" and therefore are often price-inelastic. Although a public employer, like a private one, will wish to keep costs down, he lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases. A public-sector union is correspondingly less concerned that high prices due to costly wage demands will decrease output and hence employment. The government officials making decisions as the public \"employer\" are less likely to act as a cohesive unit than are managers in private industry, in part because different levels of public authority\u2014department managers, budgetary officials, and legislative bodies\u2014are involved, and in part because each official may respond to a distinctive political constituency. And the ease of negotiating a final agreement with the union may be severely limited by statutory restrictions, by the need for the approval of a higher executive authority or a legislative body, or by the commitment of budgetary decisions of critical importance to others. Finally, decisionmaking by a public employer is above all a political process. The officials who represent the public employer are ultimately responsible to the electorate, which for this purpose can be viewed as comprising three overlapping classes of voters\u2014taxpayers, users of particular government services, and government employees. Through exercise of their political influence as part of the electorate, the employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table. Whether these representatives accede to a union's demands will depend upon a blend of political ingredients, including community sentiment about unionism generally and the involved union in particular, the degree of taxpayer resistance, and the views of voters as to the importance of the service involved and the relation between the demands and the quality of service. It is surely arguable, *229 however, that permitting public employees to unionize and a union to bargain as their exclusive representative gives the employees more influence in the decisionmaking process than is possessed by employees similarly organized in the private sector. The distinctive nature of public-sector bargaining has led to widespread discussion about the extent to which the law governing labor relations in the private sector provides an appropriate model. To take but one example, there has been considerable debate about the desirability of prohibiting public employee unions from striking,[25] a step that the State of Michigan itself has taken, Mich. Comp. Laws \u00a7 423.202 (1970). But although Michigan has not adopted the federal model of labor relations in every respect, it has determined that labor stability will be served by a system of exclusive representation and the permissive use of an agency shop in public employment. As already stated, there can be no principled basis for according that decision less weight in the constitutional balance than was given in Hanson to the congressional judgment reflected in the Railway Labor Act.[26] The only remaining constitutional inquiry evoked by the appellants' argument, therefore, is whether a public employee has a weightier First Amendment interest than a private employee in not being compelled to contribute to the costs of exclusive union representation. We think he does not. Public employees are not basically different from private employees; on the whole, they have the same sort of skills, the *230 same needs, and seek the same advantages. \"The uniqueness of public employment is not in the employees nor in the work performed; the uniqueness is in the special character of the employer.\" Summers, Public Sector Bargaining: Problems of Governmental Decisionmaking, 44 U. Cin. L. Rev. 669, 670 (1975) (emphasis added). The very real differences between exclusive-agent collective bargaining in the public and private sectors are not such as to work any greater infringement upon the First Amendment interests of public employees. A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint. Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private, orally or in writing. With some exceptions not pertinent here,[27] public employees are free to participate in the full range of political activities open to other citizens. Indeed, just this Term we have held that the First and Fourteenth Amendments protect the right of a public school teacher to oppose, at a public school board meeting, a position advanced by the teachers' union. Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167. In so ruling we recognized that the principle of exclusivity cannot constitutionally be used to muzzle a public employee who, like any other citizen, might wish to express his view about governmental decisions concerning labor relations, id., at 174. *231 There can be no quarrel with the truism that because public employee unions attempt to influence governmental policy-making, their activities\u2014and the views of members who disagree with them\u2014may be properly termed political. But that characterization does not raise the ideas and beliefs of public employees onto a higher plane than the ideas and beliefs of private employees. It is no doubt true that a central purpose of the First Amendment \" `was to protect the free discussion of governmental affairs.' \" Post, at 259, quoting Buckley v. Valeo, 424 U.S. 1, 14, and Mills v. Alabama, 384 U.S. 214, 218. But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters\u2014to take a nonexhaustive list of labels\u2014is not entitled to full First Amendment protection.[28] Union members in both the public and private sectors may find that a variety of union activities conflict with their beliefs. Compare, e. g., *232 supra, at 222, with post, at 256-257. Nothing in the First Amendment or our cases discussing its meaning makes the question whether the adjective \"political\" can properly be attached to those beliefs the critical constitutional inquiry. The differences between public-and private-sector collective bargaining simply do not translate into differences in First Amendment rights. Even those commentators most acutely aware of the distinctive nature of public-sector bargaining and most seriously concerned with its policy implications agree that \"[t]he union security issue in the public sector . . . is fundamentally the same issue . . . as in the private sector. . . . No special dimension results from the fact that a union represents public rather than private employees.\" H. Wellington & R. Winter, Jr., The Unions and the Cities 95-96 (1971). We conclude that the Michigan Court of Appeals was correct in viewing this Court's decisions in Hanson and Street as controlling in the present case insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.\nC Because the Michigan Court of Appeals ruled that state law \"sanctions the use of nonunion members' fees for purposes other than collective bargaining,\" 60 Mich. App., at 99, 230 N. W. 2d, at 326, and because the complaints allege that such expenditures were made, this case presents constitutional issues not decided in Hanson or Street. Indeed Street embraced an interpretation of the Railway Labor Act not without its difficulties, see 367 U.S., at 784-786 (Black, J., dissenting); id., at 799-803 (Frankfurter, J., dissenting), precisely to avoid facing the constitutional issues presented by the use of union-shop dues for political and ideological purposes unrelated to collective bargaining, id., at 749-750. Since the state court's construction of the Michigan statute *233 is authoritative, however, we must confront those issues in this case.[29] Our decisions establish with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments. E. g., Elrod v. Burns, 427 U.S. 347, 355-357 (plurality opinion); Cousins v. Wigoda, 419 U.S. 477, 487; Kusper v. Pontikes, 414 U.S. 51, 56-57; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461. *234 Equally clear is the proposition that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment. E. g., Elrod v. Burns, supra, at 357-360, and cases cited; Perry v. Sindermann, 408 U.S. 593; Keyishian v. Board of Regents, 385 U.S. 589. The appellants argue that they fall within the protection of these cases because they have been prohibited, not from actively associating, but rather from refusing to associate. They specifically argue that they may constitutionally prevent the Union's spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative. We have concluded that this argument is a meritorious one. One of the principles underlying the Court's decision in Buckley v. Valeo, 424 U.S. 1, was that contributing to an organization for the purpose of spreading a political message is protected by the First Amendment. Because \"[m]aking a contribution . . . enables like-minded persons to pool their resources in furtherance of common political goals,\" id., at 22, the Court reasoned that limitations upon the freedom to contribute \"implicate fundamental First Amendment interests,\" id., at 23.[30] The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights.[31] For at the heart of the First Amendment is the *235 notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State. See Elrod v. Burns, supra, at 356-357; Stanley v. Georgia, 394 U.S. 557, 565; Cantwell v. Connecticut, 310 U.S. 296, 303-304. And the freedom of belief is no incidental or secondary aspect of the First Amendment's protections: \"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.\" West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642. These principles prohibit a State from compelling any individual to affirm his belief in God, Torcaso v. Watkins, 367 U.S. 488, or to associate with a political party, Elrod v. Burns, supra; see 427 U.S., at 363-364, n. 17, as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher. We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.[32] Rather, the Constitution requires only that *236 such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment. There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited.[33] The Court held in Street, as a matter of statutory construction, that a similar line must be drawn under the Railway Labor Act, but in the public sector the line may be somewhat hazier. The process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process. We have no occasion in this case, however, to try to define such a dividing line. The case comes to us after a judgment on the pleadings, and there is no evidentiary record of any kind. The allegations in the complaints are general ones, see supra, at 212-213, and the parties have neither briefed nor argued the question of what specific Union activities in the present context properly fall under the definition of collective bargaining. The lack of factual concreteness and adversary presentation to aid us in approaching the difficult line-drawing questions highlights the *237 importance of avoiding unnecessary decision of constitutional questions.[34] All that we decide is that the general allegations in the complaints, if proved, establish a cause of action under the First and Fourteenth Amendments.\nIII In determining what remedy will be appropriate if the appellants prove their allegations, the objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities.[35] This task is simplified by the guidance to be had from prior decisions. In Street, the plaintiffs had proved at trial that expenditures were being made for political purposes of various kinds, and *238 the Court found those expenditures illegal under the Railway Labor Act. See supra, at 219-220. Moreover, in that case each plaintiff had \"made known to the union representing his craft or class his dissent from the use of his money for political causes which he opposes.\" 367 U.S., at 750; see id., at 771. The Court found that \"[i]n that circumstance, the respective unions were without power to use payments thereafter tendered by them for such political causes.\" Ibid. Since, however, Hanson had established that the union-shop agreement was not unlawful as such, the Court held that to enjoin its enforcement would \"[sweep] too broadly.\" 367 U.S., at 771. The Court also found that an injunction prohibiting the union from expending dues for political purposes would be inappropriate, not only because of the basic policy reflected in the Norris-La Guardia Act[36] against enjoining labor unions, but also because those union members who do wish part of their dues to be used for political purposes have a right to associate to that end \"without being silenced by the dissenters.\" Id., at 772-773.[37] After noting that \"dissent is not to be presumed\" and that only employees who have affirmatively made known to the union their opposition to political uses of their funds are entitled to relief, the Court sketched two possible remedies: First, \"an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union's total expenditures made for such political activities to the union's total budget\"; and second, restitution of a fraction of union dues paid equal to the fraction of total union expenditures that were made for political purposes opposed by the employee. Id., at 774-775.[38] *239 The Court again considered the remedial question in Railway Clerks v. Allen, 373 U.S. 113. In that case employees who had refused to pay union-shop dues obtained injunctive relief in state court against enforcement of the union-shop agreement. The employees had not notified the union prior to bringing the lawsuit of their opposition to political expenditures, and at trial, their testimony was principally that they opposed such expenditures, as a general matter. Id., at 118-119, n. 5. The Court held that the employees had adequately established their cause of action by manifesting \"opposition to any political expenditures by the union,\" id., at 118 (emphasis in original), and that the requirement in Street that dissent be affirmatively indicated was satisfied by the allegations in the complaint that was filed, 373 U.S., at 118-119, and n. 6.[39] The Court indicated again the appropriateness of the two remedies sketched in Street; reversed the judgment affirming issuance of the injunction; and remanded for determination of which expenditures were properly to be characterized as political and what percentage of total union expenditures they constituted.[40] *240 The Court in Allen described a \"practical decree\" that could properly be entered, providing for (1) the refund of a portion of the exacted funds in the proportion that union political expenditures bear to total union expenditures, and (2) the reduction of future exactions by the same proportion. 373 U.S., at 122. Recognizing the difficulties posed by judicial administration of such a remedy, the Court also suggested that it would be highly desirable for unions to adopt a \"voluntary plan by which dissenters would be afforded an internal union remedy.\" Ibid. This last suggestion is particularly relevant to the case at bar, for the Union has adopted such a plan since the commencement of this litigation.[41] Although Street and Allen were concerned with statutory rather than constitutional violations, that difference surely could not justify any lesser relief in this case. Judged by the standards of those cases, the Michigan Court of Appeals' ruling that the appellants were entitled to no relief at this juncture was unduly restrictive. For all the reasons *241 outlined in Street, the court was correct in denying the broad injunctive relief requested. But in holding that as a prerequisite to any relief each appellant must indicate to the Union the specific expenditures to which he objects, the Court of Appeals ignored the clear holding of Allen. As in Allen, the employees here indicated in their pleadings that they opposed ideological expenditures of any sort that are unrelated to collective bargaining. To require greater specificity would confront an individual employee with the dilemma of relinquishing either his right to withhold his support of ideological causes to which he objects or his freedom to maintain his own beliefs without public disclosure.[42] It would also place on each employee the considerable burden of monitoring all of the numerous and shifting expenditures made by the Union that are unrelated to its duties as exclusive bargaining representative. The Court of Appeals thus erred in holding that the plaintiffs are entitled to no relief if they can prove the *242 allegations contained in their complaints,[43] and in depriving them of an opportunity to establish their right to appropriate relief, such, for example, as the kind of remedies described in Street and Allen.[44] In view of the newly adopted Union internal remedy, it may be appropriate under Michigan law, even if not strictly required by any doctrine of exhaustion of remedies, to defer further judicial proceedings pending the voluntary utilization by the parties of that internal remedy as a possible means of settling the dispute.[45] The judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, concurring. Had I joined the plurality opinion in Elrod v. Burns, 427 U.S. 347 (1976), I would find it virtually impossible to join the Court's opinion in this case. In Elrod, the plurality stated: \"The illuminating source to which we turn in performing the task [of constitutional adjudication] is the system *243 of government the First Amendment was intended to protect, a democratic system whose proper functioning is indispensably dependent on the unfettered judgment of each citizen on matters of political concern. Our decision in obedience to the guidance of that source does not outlaw political parties or political campaigning and management. Parties are free to exist and their concomitant activities are free to continue. We require only that the rights of every citizen to believe as he will and to act and associate according to his beliefs be free to continue as well.\" Id., at 372. I do not read the Court's opinion as leaving intact the \"unfettered judgment of each citizen on matters of political concern\" when it holds that Michigan may, consistently with the First and Fourteenth Amendments, require an objecting member of a public employees' union to contribute to the funds necessary for the union to carry out its bargaining activities. Nor does the Court's opinion leave such a member free \"to believe as he will and to act and associate according to his beliefs.\" I agree with the Court, and with the views expressed in MR. JUSTICE POWELL'S opinion concurring in the judgment, that the positions taken by public employees' unions in connection with their collective-bargaining activities inevitably touch upon political concern if the word \"political\" be taken in its normal meaning. Success in pursuit of a particular collective-bargaining goal will cause a public program or a public agency to be administered in one way; failure will result in its being administered in another way. I continue to believe, however, that the dissenting opinion of MR. JUSTICE POWELL in Elrod v. Burns, supra, which I joined, correctly stated the governing principles of First and Fourteenth Amendment law in the case of public employees such as this. I am unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, *244 and a similar requirement that a public employee contribute to the collective-bargaining expenses of a labor union. I therefore join the opinion and judgment of the Court. MR. JUSTICE STEVENS, concurring. By joining the opinion of the Court, including its discussion of possible remedies, I do not imply\u2014nor do I understand the Court to imply\u2014that the remedies described in Machinists v. Street, 367 U.S. 740, and Railway Clerks v. Allen, 373 U.S. 113, would necessarily be adequate in this case or in any other case. More specifically, the Court's opinion does not foreclose the argument that the Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining. Any final decision on the appropriate remedy must await the full development of the facts at trial.[*] MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the judgment. The Court today holds that a State cannot constitutionally compel public employees to contribute to union political activities which they oppose. On this basis the Court concludes that \"the general allegations in the complaints, if proved, establish a cause of action under the First and Fourteenth Amendments.\" Ante, at 237. With this much of the Court's opinion I agree, and I therefore join the Court's judgment remanding this case for further proceedings. *245 But the Court's holding and judgment are but a small part of today's decision. Working from the novel premise that public employers are under no greater constitutional constraints than their counterparts in the private sector, the Court apparently rules that public employees can be compelled by the State to pay full union dues to a union with which they disagree, subject only to a possible rebate or deduction if they are willing to step forward, declare their opposition to the union, and initiate a proceeding to establish that some portion of their dues has been spent on \"ideological activities unrelated to collective bargaining.\" Ante, at 236. Such a sweeping limitation of First Amendment rights by the Court is not only unnecessary on this record; it is in my view unsupported by either precedent or reason.\nI The Court apparently endorses the principle that the State infringes interests protected by the First Amendment when it compels an individual to support the political activities of others as a condition of employment. See ante, at 222-223, 233-235. One would think that acceptance of this principle would require a careful inquiry into the constitutional interests at stake in a case of this importance. But the Court avoids such an inquiry on the ground that it is foreclosed by this Court's decisions in Railway Employes' Dept. v. Hanson, 351 U.S. 225 (1956), and Machinists v. Street, 367 U.S. 740 (1961). With all respect, the Court's reliance on these cases, which concerned only congressional authorization of union-shop agreements in the private sector, is misplaced.\nA The issue before the Court in Hanson was the constitutionality of the Railway Labor Act's authorization of union-shop agreements in the private sector. Section 2 Eleventh of that Act, 45 U.S. C. \u00a7 152 Eleventh, provides in essence that, notwithstanding any contrary provision of state law, employers *246 and unions are permitted to enter into voluntary agreements whereby employment is conditioned on payment of full union dues and fees. See ante, at 218 n. 11. The suit was brought by nonunion members who claimed that Congress had forced them into \"ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights.\" 351 U.S., at 236. Acceptance of this claim would have required adoption by the Court of a series of far-reaching propositions: (i) that there was sufficient governmental involvement in the private union-shop agreement to justify inquiry under the First Amendment; (ii) that a refusal to pay money to a union could be \"speech\" protected by the First Amendment; (iii) that Congress had interfered with or infringed that protected speech interest by authorizing union shops; and (iv) that the interference was unwarranted by any overriding congressional objective. The Court adopted only the first of these propositions: It agreed with the Supreme Court of Nebraska that \u00a7 2 Eleventh, by authorizing union-shop agreements that otherwise might be forbidden by state law, had involved Congress sufficiently to justify examination of the First Amendment claims. On the merits the Court concluded that there was no violation of the First Amendment. The reasoning behind this conclusion was not elaborate. Some language in the opinion appears to suggest that even if Congress had compelled employers and employees to enter into union-shop agreements, the required financial support for the union would not infringe any protected First Amendment interest.[1] But the Court *247 did not lose sight of the distinction between governmentally compelled financial support and the actual effect of the Railway Labor Act: \"The union shop provision of the Railway Labor Act is only permissive. Congress has not compelled nor required carriers and employees to enter into union shop agreements.\" (Footnote omitted.) 351 U.S., at 231. As the Court later reflected in Street: \"[A]ll that was held in Hanson was that \u00a7 2, Eleventh was constitutional in its bare authorization of union-shop contracts requiring workers to give `financial support' to unions legally authorized to act as their collective bargaining agents. . . .\" 367 U.S., at 749. To the extent that Hanson suggests that withholding financial support from unions is unprotected by the First Amendment against governmental compulsion, it is significantly undercut by the subsequent decision in Street. The claim before the Court in Street was similar to that in Hanson: minority employees complained that they were being forced by a union-shop agreement to pay full union dues. This time, however, the employees specifically complained that part of their dues was being used for political activities to which they were opposed. And this time the Court perceived that the constitutional questions were \"of the utmost gravity.\" 367 U.S., at 749. In order to avoid having to decide those difficult questions, the Court read into the Act a restriction on a union's use of an employee's money for political activities: \"[W]e hold . . . that \u00a7 2, Eleventh is to be construed to deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes.\" Id., at 768-769. In so reading \u00a7 2 Eleventh to avoid \"unnecessary constitutional decisions,\" 367 U.S., at 749, Street suggests a rethinking *248 of the First Amendment issues decided so summarily\u2014indeed, almost viewed as inconsequential\u2014in Hanson. To be sure, precisely because the decision in Street does not rest explicitly on the Constitution, the opinion for the Court supplies no more reasoned analysis of the constitutional issues than did the opinion in Hanson. But examination of the Court's strained construction of the Railway Labor Act in light of the various separate opinions in Street suggests that the Court sought to leave open three important constitutional questions by taking the course that it did. First, the Court's reading of the Act made it unnecessary to decide whether the withholding of financial support from a union's political activities is a type of \"speech\" protected against governmental abridgment by the First Amendment. Mr. Justice Douglas, who wrote the opinion for the Court in Hanson and provided the necessary fifth vote in Street, believed that \"use of union funds for political purposes subordinates the individual's First Amendment rights to the views of the majority.\" 367 U.S., at 778. Mr. Justice Black expressed a similar view in dissent. Id., at 790-791. But Mr. Justice Frankfurter, joined by Mr. Justice Harlan, strongly disagreed, id., at 806, and the Court's reading of the statute made it unnecessary to resolve the dispute. Second, the Court's approach made it possible to reserve judgment on whether, assuming protected First Amendment interests were implicated, Congress might go further in approving private arrangements that would interfere with those interests than it could in commanding such arrangements. Mr. Justice Douglas had no doubts that the constraints on Congress were the same in either case: \"Since neither Congress nor the state legislatures can abridge [First Amendment] rights, they cannot grant the power to private groups to abridge them. As I read the First Amendment, it forbids any abridgment by government whether directly or indirectly.\" Id., at 777. *249 But here, too, Mr. Justice Frankfurter disagreed: \"[W]e must consider the difference between . . . compulsion and the absence of compulsion when Congress acts as platonically as it did, in a wholly non-coercive way. Congress has not commanded that the railroads shall employ only those workers who are members of authorized unions. . . . When we speak of the Government `acting' in permitting the union shop, the scope and force of what Congress has done must be heeded. There is not a trace of compulsion involved\u2014no exercise of restriction by Congress on the freedom of the carriers and the unions. . . .\" Id., at 806-807. And here, too, the Court's reading of the statute permitted it to avoid an unnecessary constitutional decision.[2] Finally, by placing its decision on statutory grounds, the Court was able to leave open the question whether, assuming the Act intruded on protected First Amendment interests, the intrusion could be justified by the governmental interests asserted on its behalf. Hanson made it unnecessary to address this issue with respect to funds exacted solely for collective bargaining.[3] And by reading the Railway Labor Act to prohibit *250 a union's use of exacted funds for political purposes, Street made it unnecessary to discuss whether authorizing such a use of union-shop funds might ever be justified.[4] In my view, these cases can and should be read narrowly. The only constitutional principle for which they clearly stand is the narrow holding of Hanson that the Railway Labor Act's authorization of voluntary union-shop agreements in the private sector does not violate the First Amendment. They do not hold that the withholding of financial support from a union is protected speech; nor do they signify that the government could constitutionally compel employees, absent a private union-shop agreement, to pay full union dues to a union representative as a condition of employment; nor do they say anything about the kinds of governmental interests that could justify such compulsion, if indeed justification were required by the First Amendment.\nB The Court's extensive reliance on Hanson and Street requires it to rule that there is no constitutional distinction between what the government can require of its own employees and what it can permit private employers to do. To me the distinction is fundamental. Under the First Amendment the government may authorize private parties to enter into voluntary agreements whose terms it could not adopt as its own. We stressed the importance of this distinction only recently, *251 in Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). There a New York resident had brought suit against a private utility, claiming that she had been denied due process when the utility terminated her service without notice or a hearing and alleging that the utility's summary termination procedures had been \"specifically authorized and approved\" by the State. In sustaining dismissal of the complaint, we held that authorization and approval did not transform the procedures of the company into the procedures of the State: \"The nature of governmental regulation of private utilities is such that a utility may frequently be required by the state regulatory scheme to obtain approval for practices a business regulated in less detail would be free to institute without any approval from a regulatory body. Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into `state action.' \" Id., at 357. Had the State itself adopted the procedures it approved for the utility, it would have been subject to the full constraints of the Constitution.[5] *252 An analogy is often drawn between the collective-bargaining agreement in labor relations and a legislative code. This Court has said, for example, that the powers of a union under the Railway Labor Act are \"comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents . . . .\" Steele v. Louisville & N. R. Co., 323 U.S. 192, 202 (1944). Some have argued that this analogy requires each provision of a private collective-bargaining agreement to meet the same limitations that the Constitution imposes on congressional enactments.[6] But this Court has wisely refrained from adopting this view and generally has measured the rights and duties embodied in a collective-bargaining agreement only against the limitations imposed by Congress. See Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50, 62-65 (1975); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180-181 (1967).[7] Similar constitutional restraint would be wholly inappropriate in the public sector. The collective-bargaining agreement to which a public agency is a party is not merely analogous to legislation, it has all of the attributes of legislation *253 for the subjects with which it deals. Where a teachers' union, for example, acting pursuant to a state statute authorizing collective bargaining in the public sector, obtains the agreement of the school board that teachers residing outside the school district will not be hired, the provision in the bargaining agreement to that effect has the same force as if the school board had adopted it by promulgating a regulation. Indeed, the rule in Michigan is that where a municipal collective-bargaining agreement conflicts with an otherwise valid municipal ordinance, the ordinance must yield to the agreement. Detroit Police Officers Assn. v. Detroit, 391 Mich. 44, 214 N.W.2d 803 (1974) (holding that a duly enacted residency requirement for police must yield to any contrary agreement reached by collective bargaining). The State in this case has not merely authorized agency-shop agreements between willing parties; it has negotiated and adopted such an agreement itself. Acting through the Detroit Board of Education, the State has undertaken to compel employees to pay full fees equal in amount to dues to a union as a condition of employment. Accordingly, the Board's collective-bargaining agreement, like any other enactment of state law, is fully subject to the constraints that the Constitution imposes on coercive governmental regulation.[8] *254 Because neither Hanson nor Street confronted the kind of governmental participation in the agency shop that is involved here, those cases provide little or no guidance for the constitutional issues presented in this case.[9] With the understanding, therefore, that the Court writes on a clean constitutional slate in the field of public-sector collective bargaining, I turn to the merits.\nII The Court today holds that compelling an employee to finance a union's \"ideological activities unrelated to collective bargaining\" violates the First Amendment, regardless of any asserted governmental justification. Ante, at 236. But the Court also decides that compelling an employee to finance any union activity that may be \"related\" in some way to collective bargaining is permissible under the First Amendment because such compulsion is \"relevant or appropriate\" to asserted governmental interests. Ante, at 222-223, 225 n. 20. And the Court places the burden of litigation on the individual. In order to vindicate his First Amendment rights in a union *255 shop, the individual employee apparently must declare his opposition to the union and initiate a proceeding to determine what part of the union's budget has been allocated to activities that are both \"ideological\" and \"unrelated to collective bargaining.\" Ante, at 237-241. I can agree neither with the Court's rigid two-tiered analysis under the First Amendment, nor with the burden it places on the individual. Under First Amendment principles that have become settled since Hanson and Street were decided, it is now clear, first, that any withholding of financial support for a public-sector union is within the protection of the First Amendment; and, second, that the State should bear the burden of proving that any union dues or fees that it requires of nonunion employees are needed to serve paramount governmental interests.\nA The initial question is whether a requirement of a school board that all of its employees contribute to a teachers' union as a condition of employment impinges upon the First Amendment interests of those who refuse to support the union, whether because they disapprove of unionization of public employees or because they object to certain union activities or positions. The Court answers this question in the affirmative: \"The fact that [government employees] are compelled to make . . . contributions for political purposes works . . . an infringement of their constitutional rights,\" ante, at 234, and any compelled support for a union \"has an impact upon\" and may be thought to \"interfere in some way with\" First Amendment interests. Ante, at 222. I agree with the Court as far as it goes, but I would make it more explicit that compelling a government employee to give financial support to a union in the public sector\u2014regardless of the uses to which the union puts the contribution\u2014impinges seriously upon interests in free speech and association protected by the First Amendment. In Buckley v. Valeo, 424 U.S. 1 (1976), we considered the *256 constitutional validity of the Federal Election Campaign Act of 1971, as amended in 1974, which in one of its provisions limited the amounts that individuals could contribute to federal election campaigns. We held that these limitations on political contributions \"impinge on protected associational freedoms\": \"Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act's contribution ceilings thus limit one important means of associating with a candidate or committee . . . .\" Id., at 22. That Buckley dealt with a contribution limitation rather than a contribution requirement does not alter its importance for this case. An individual can no more be required to affiliate with a candidate by making a contribution than he can be prohibited from such affiliation. The only question after Buckley is whether a union in the public sector is sufficiently distinguishable from a political candidate or committee to remove the withholding of financial contributions from First Amendment protection. In my view no principled distinction exists. The ultimate objective of a union in the public sector, like that of a political party, is to influence public decisionmaking in accordance with the views and perceived interests of its membership. Whether a teachers' union is concerned with salaries and fringe benefits, teacher qualifications and in-service training, pupil-teacher ratios, length of the school day, student discipline, or the content of the high school curriculum, its objective is to bring school board policy and decisions into harmony with its own views. Similarly, to the extent that school board expenditures and policy are guided by decisions made by the municipal, State, and Federal Governments, *257 the union's objective is to obtain favorable decisions \u2014and to place persons in positions of power who will be receptive to the union's viewpoint. In these respects, the public-sector union is indistinguishable from the traditional political party in this country.[10] What distinguishes the public-sector union from the political party\u2014and the distinction is a limited one\u2014is that most of its members are employees who share similar economic interests and who may have a common professional perspective on some issues of public policy. Public school teachers, for example, have a common interest in fair teachers' salaries and reasonable pupil-teacher ratios. This suggests the possibility of a limited range of probable agreement among the class of individuals that a public-sector union is organized to represent. But I am unable to see why the likelihood of an area of consensus in the group should remove the protection of the First Amendment for the disagreements that inevitably will occur. Certainly, if individual teachers are ideologically opposed to public-sector unionism itself, as are the appellants in this case, ante, at 212-213, one would think that compelling them to affiliate with the union by contributing to it infringes their First Amendment rights to the same degree as compelling them to contribute to a political party. Under the First Amendment, the protection of speech does not turn on the likelihood or frequency of its occurrence. Nor is there any basis here for distinguishing \"collective-bargaining activities\" from \"political activities\" so far as the interests protected by the First Amendment are concerned. Collective bargaining in the public sector is \"political\" in any meaningful sense of the word. This is most obvious when *258 public-sector bargaining extends\u2014as it may in Michigan[11]\u2014to such matters of public policy as the educational philosophy that will inform the high school curriculum. But it is also true when public-sector bargaining focuses on such \"bread and butter\" issues as wages, hours, vacations, and pensions. Decisions on such issues will have a direct impact on the level of public services, priorities within state and municipal budgets, creation of bonded indebtedness, and tax rates. The cost of public education is normally the largest element of a county or municipal budget. Decisions reached through collective bargaining in the schools will affect not only the teachers and the quality of education, but also the taxpayers and the beneficiaries of other important public services. Under our democratic system of government, decisions on these critical issues of public policy have been entrusted to elected officials who ultimately are responsible to the voters.[12] Disassociation with a public-sector union and the expression of disagreement with its positions and objectives therefore lie at \"the core of those activities protected by the First Amendment.\" Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality opinion). \"Although First Amendment protections are not confined *259 to `the exposition of ideas,' Winters v. New York, 333 U.S. 507, 510 (1948), `there is practically universal agreement that a major purpose of th[e] Amendment was to protect the free discussion of governmental affairs . . . .' Mills v. Alabama, 384 U.S. 214, 218 (1966).\" Buckley, 424 U. S., at 14. As the public-sector agency shop unquestionably impinges upon the interests protected by the First Amendment, I turn to the justifications offered for it by the Detroit Board of Education.[13] B \"Neither the right to associate nor the right to participate in political activities is absolute. . . .\" CSC v. Letter Carriers, 413 U.S. 548, 567 (1973). This is particularly true in the field of public employment, where \"the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.\" Pickering v. Board of Education, 391 U.S. 563, 568 (1968). Nevertheless, even in public employment, \"a significant impairment of First Amendment rights must survive exacting scrutiny.\" Elrod v. Burns, 427 U. S., at 362 (plurality opinion); accord, id., at 381 (POWELL, J., dissenting). \"The [governmental] interest advanced must be paramount, one of vital importance, and the burden is on the *260 government to show the existence of such an interest. . . . [C]are must be taken not to confuse the interest of partisan organizations with governmental interests. Only the latter will suffice. Moreover, . . . the government must `emplo[y] means closely drawn to avoid unnecessary abridgment . . . .' Buckley v. Valeo, supra, at 25.\" Id., at 362-363 (plurality opinion). The justifications offered by the Detroit Board of Education must be tested under this settled standard of review.[14] As the Court points out, ante, at 224-226, the interests advanced for the compulsory agency shop that the Detroit Board of Education has entered into are much the same as those advanced for federal legislation permitting voluntary agency-shop agreements in the private sector. The agency shop is said to be a necessary adjunct to the principle of exclusive union representation; it is said to reduce the risk that nonunion employees will become \"free riders\" by fairly distributing the costs of exclusive representation; and it is said to promote the cause of labor peace in the public sector. Ante, at 220-221. While these interests may well justify encouraging agency-shop arrangements in the private sector, there is far less reason to believe they justify the intrusion *261 upon First Amendment rights that results from compelled support for a union as a condition of government employment. In Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175 (1976), we expressly reserved judgment on the constitutional validity of the exclusivity principle in the public sector. The Court today decides this issue summarily: \"The confusion and conflict that could arise if rival teachers' unions, holding quite different views as to the proper class hours, class sizes, holidays, tenure provisions, and grievance procedures, each sought to obtain the employer's agreement, are no different in kind from the evils that the exclusivity rule in the Railway Labor Act was designed to avoid.\" Ante, at 224. I would have thought that \"conflict\" in ideas about the way in which government should operate was among the most fundamental values protected by the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). That the \"Constitution does not require all public acts to be done in town meeting or an assembly of the whole,\" Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915), does not mean that a State or municipality may agree to set public policy on an unlimited range of issues in closed negotiations with \"one category of interested individuals.\" Madison School Dist., supra, at 175. Such a commitment by a governmental body to exclude minority viewpoints from the councils of government would violate directly the principle that \"government must afford all points of view an equal opportunity to be heard.\" Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972).[15] *262 The Court points out that the minority employee is not barred by the exclusivity principle from expressing his view-point, see ante, at 230. In a limited sense, this may be true. The minority employee is excluded in theory only from engaging in a meaningful dialogue with his employer on the subjects of collective bargaining, a dialogue that is reserved to the union. It is possible that paramount governmental interests may be found\u2014at least with respect to certain narrowly defined subjects of bargaining\u2014that would support this restriction on First Amendment interests. But \"the burden is on the government to show the existence of such an interest.\" Elrod v. Burns, 427 U. S., at 362 (plurality opinion). Because this appeal reaches this Court on a motion to dismiss, the record is barren of any demonstration by the State that excluding minority views from the processes by which governmental policy is made is necessary to serve overriding governmental objectives. For the Court to sustain the exclusivity principle in the public sector in the absence of a carefully documented record is to ignore, rather than respect, \"the importance of avoiding unnecessary decision of constitutional questions.\" Ante, at 236-237. The same may be said of the asserted interests in eliminating the \"free rider\" effect and in preserving labor peace. It may be that the Board of Education is in a position to demonstrate *263 that these interests are of paramount importance and that requiring public employees to pay certain union fees and dues as a condition of employment is necessary to serve those interests under an exclusive bargaining scheme. On the present record there is no assurance whatever that this is the case.[16] Before today it had been well established that when state law intrudes upon protected speech, the State itself must shoulder the burden of proving that its action is justified by overriding state interests. See Elrod v. Burns, supra, at 363; Healy v. James, 408 U.S. 169, 184 (1972); Speiser v. Randall, 357 U.S. 513, 525-526 (1958). The Court, for the first time in a First Amendment case, simply reverses this principle. Under today's decision, a nonunion employee who would vindicate *264 his First Amendment rights apparently must initiate a proceedings to prove that the union has allocated some portion of its budget to \"ideological activities unrelated to collective bargaining.\" Ante, at 237-241. I would adhere to established First Amendment principles and require the State to come forward and demonstrate, as to each union expenditure for which it would exact support from minority employees, that the compelled contribution is necessary to serve overriding governmental objectives. This placement of the burden of litigation, not the Court's, gives appropriate protection to First Amendment rights without sacrificing ends of government that may be deemed important. NOTES [*] Ronald A. Zumbrun and John H. Findley filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal.\nRobert H. Chanin and David Rubin filed a brief for the National Education Assn. as amicus curiae urging affirmance. [1] The certification was authorized by Mich. Comp. Laws \u00a7 423.211 (1970), which provides: \"Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer: Provided, That any individual employee at any time may present grievances to his employer and have the grievances adjusted, without intervention of the bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given opportunity to be present at such adjustment.\" [2] Some of the plaintiffs were Union members and were paying agency-shop fees under protest; others had refused either to pay or to join the Union; still others had joined the Union and paid the fees without any apparent protest. The agency-shop clause itself prohibits the discharge of an employee engaged in litigation concerning his service charge obligation until his legal remedies have been exhausted, and no effort to enforce the clause against any of the plaintiffs has been made. [3] The nature of these activities and of the objections to them were not described in any further detail. [4] A grant of summary judgment under Mich. Gen. Ct. Rule 117.2(1) is equivalent to dismissal under Fed. Rule Civ. Proc. 12 (b) (6) for failure to state a claim upon which relief can be granted. See Bielski v. Wolverine Ins. Co., 379 Mich. 280, 150 N.W.2d 788; Hiers v. Brownell, 376 Mich. 225, 136 N.W.2d 10; Handwerk v. United Steelworkers of America, 67 Mich. App. 747, 242 N.W.2d 514; Crowther v. Ross Chem. & Mfg. Co., 42 Mich. App. 426, 202 N.W.2d 577. [5] The only material difference was that Abood was not a class action. [6] The Abood complaint prayed for declaratory and injunctive relief against discharge of any teacher for failure to pay the service charge, and for such other relief as might be deemed appropriate. [7] That section provides in relevant part: \"[N]othing in this act or in any law of this state shall preclude a public employer from making an agreement with an exclusive bargaining representative as defined in section 11 to require as a condition of employment that all employees in the bargaining unit pay to the exclusive bargaining representative a service fee equivalent to the amount of dues uniformly required of members of the exclusive bargaining representative . . . .\" [8] The purpose of the remand was not expressly indicated. The trial court had entered judgment for the defendants upon the ground that the complaint failed to state a claim on which relief could be granted. The state appellate court's ruling that the 1973 amendment was not to be given retroactive effect did not undermine the validity of the trial court's judgment, for the Court of Appeals' determination that any possibly meritorious claims raised by the plaintiffs were prematurely asserted required the same result as that ordered by the trial court. The remand \"as to the retroactive application given to [the 1973 amendment]\" must, therefore, have been only for a ministerial purpose, such as the correction of language in the trial court's judgment for the defendants. In these circumstances, the judgment of the Court of Appeals is final for purposes of 28 U.S. C. \u00a7 1257 (2). See, e. g., Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 382; Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67-68; Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, 72-74. [9] At oral argument the suggestion was made that this case might be moot. The only agency-shop clause placed in issue by the complaints was contained in a collective-bargaining agreement that expired in 1971. That clause was unenforceable as a matter of state law after the decision in Smigel and the ruling of the State Court of Appeals in the present cases that the 1973 statute should not be given retroactive application.\nBut both sides acknowledged in their briefs submitted to the Michigan Court of Appeals that a successor collective-bargaining agreement effective in 1973 contained substantially the identical agency-shop provision. The Court of Appeals appears to have taken judicial notice of this agreement in rendering its decision, for otherwise its ruling that the 1973 amendment was not retroactive would have disposed of the case without the need to consider any constitutional questions. Since the state appellate court considered the 1973 agreement to be part of the record in making its ruling, we proceed upon the same premise. The fact that the 1973 agreement may have expired since the state appellate court rendered its decision does not affect the continuing vitality of this controversy for Art. III purposes. Some of the plaintiffs in both Warczak and Abood either refused to pay the service charge or paid it under protest. See n. 2, supra. Their contention that they cannot constitutionally be compelled to contribute the service charge, or at least some portion of it, thus survives the expiration of the collective-bargaining agreement itself. [10] Under a union-shop agreement, an employee must become a member of the union within a specified period of time after hire, and must as a member pay whatever union dues and fees are uniformly required. Under both the National Labor Relations Act and the Railway Labor Act, \"[i]t is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues.\" NLRB v. General Motors, 373 U.S. 734, 742. See 29 U.S. C. \u00a7 158 (a) (3); 45 U.S. C. \u00a7 152 Eleventh, quoted in n. 11, infra. Hence, although a union shop denies an employee the option of not formally becoming a union member, under federal law it is the \"practical equivalent\" of an agency shop, NLRB v. General Motors, supra, at 743. See also Lathrop v. Donohue, 367 U.S. 820, 828.\nHanson was concerned simply with the requirement of financial support for the union, and did not focus on the question whether the additional requirement of a union-shop arrangement that each employee formally join the union is constitutionally permissible. See NLRB v. General Motors, supra, at 744 (\"Such a difference between the union and agency shop may be of great importance in some contexts . . .\"); cf. Storer v. Brown, 415 U.S. 724, 745-746. As the agency shop before us does not impose that additional requirement, we have no occasion to address that question. [11] In relevant part, that section provides: \"Notwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted\u2014 \"(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership.\" [12] Unlike \u00a7 14 (b) of the National Labor Relations Act, 29 U.S. C. \u00a7 164 (b), the Railway Labor Act pre-empts any attempt by a State to prohibit a union-shop agreement. Had it not been for that federal statute, the union-shop provision at issue in Hanson would have been invalidated under Nebraska law. The Hanson Court accordingly reasoned that government action was present: \"[T]he federal statute is the source of the power and authority by which any private rights are lost or sacrificed. . . . The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates. . . .\" 351 U.S., at 232. See also id., at 232 n. 4 (\"Once courts enforce the agreement the sanction of government is, of course, put behind them. See Shelley v. Kraemer, 334 U.S. 1; Hurd v. Hodge, 334 U.S. 24; Barrows v. Jackson, 346 U.S. 249\"). [13] In suggesting that Street \"significantly undercut,\" and constituted a \"rethinking\" of, Hanson, post, at 247, the opinion concurring in the judgment loses sight of the fact that the record in Street, unlike that in Hanson, potentially presented constitutional questions arising from union expenditures for ideological purposes unrelated to collective bargaining. [14] 29 U.S. C. \u00a7 151 et seq. [15] See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564: \"Because `[t]he collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit,' Vaca v. Sipes, 386 U.S. 171, 182 (1967), the controlling statutes have long been interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, `the responsibility and duty of fair representation.' Humphrey v. Moore, supra, at 342. The union as the statutory representative of the employees is `subject always to complete good faith and honesty of purpose in the exercise of its discretion.' Ford Motor Co. v. Huffman, [345 U.S. 330, 338]. Since Steele v. Louisville & N. R. Co., 323 U.S. 192 (1944), with respect to the railroad industry, and Ford Motor Co. v. Huffman, supra, and Syres v. Oil Workers, 350 U.S. 892 (1955), with respect to those industries reached by the National Labor Relations Act, the duty of fair representation has served as a `bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.' Vaca v. Sipes, supra, at 182.\" [16] See infra, at 233-235. [17] See, e. g., infra, at 229. [18] See n. 1, supra. [19] See supra, at 214, and n. 7. [20] See Hanson, 351 U. S., at 233-234 (footnote omitted): \"Powerful arguments have been made here that the long-run interests of labor would be better served by the development of democratic traditions in trade unionism without the coercive element of the union or the closed shop. Mr. Justice Brandeis, who had wide experience in labor-management relations prior to his appointment to the Court, wrote forcefully against the closed shop. He feared that the closed shop would swing the pendulum in the opposite extreme and substitute `tyranny of the employee' for `tyranny of the employer.' But the question is one of policy with which the judiciary has no concern, as Mr. Justice Brandeis would have been the first to concede. Congress, acting within its constitutional powers, has the final say on policy issues. If it acts unwisely, the electorate can make a change. The task of the judiciary ends once it appears that the legislative measure adopted is relevant or appropriate to the constitutional power which Congress exercises. The ingredients of industrial peace and stabilized labor-management relations are numerous and complex. They may well vary from age to age and from industry to industry. What would be needful one decade might be anathema the next. The decision rests with the policy makers, not with the judiciary.\" See also Adair v. United States, 208 U.S. 161, 191-192 (Holmes, J., dissenting): \"I quite agree that the question what and how much good labor unions do, is one on which intelligent people may differ,\u2014I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind\u2014but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest, not only of the men, but of the railroads and the country at large.\" [21] See, e. g., cases cited, infra, at 233-235. [22] See supra, at 218, and n. 12. [23] Nothing in our opinion embraces the \"premise that public employers are under no greater constitutional constraints than their counterparts in the private sector,\" post, at 245 (POWELL, J., concurring in judgment), or indicates that private collective-bargaining agreements are, without more, subject to constitutional constraints, see post, at 252. We compare the agency-shop agreement in this case to those executed under the Railway Labor Act simply because the existence of governmental action in both contexts requires analysis of the free expression question.\nIt is somewhat startling, particularly in view of the concession that Hanson was premised on a finding that governmental action was present, see post, at 246 (POWELL, J., concurring in judgment), to read in MR. JUSTICE POWELL'S concurring opinion that Hanson and Street \"provide little or no guidance for the constitutional issues presented in this case,\" post, at 254. Hanson nowhere suggested that the constitutional scrutiny of the agency-shop agreement was watered down because the governmental action operated less directly than is true in a case such as the present one. Indeed, Mr. Justice Douglas, the author of Hanson, expressly repudiated that suggestion: \"Since neither Congress nor the state legislatures can abridge [First Amendment] rights, they cannot grant the power to private groups to abridge them. As I read the First Amendment, it forbids any abridgment by government whether directly or indirectly.\" Street, 367 U. S., at 777 (concurring opinion). [24] See, e. g., K. Hanslowe, The Emerging Law of Labor Relations in Public Employment (1967); H. Wellington & R. Winter, Jr., The Unions and the Cities (1971); Hildebrand, The Public Sector, in J. Dunlop and N. Chamberlain (eds.), Frontiers of Collective Bargaining 125-154 (1967); Rehmus, Constraints on Local Governments in Public Employee Bargaining, 67 Mich. L. Rev. 919 (1969); Shaw & Clark, The Practical Differences Between Public and Private Sector Collective Bargaining, 19 U. C. L. A. L. Rev. 867 (1972); Smith, State and Local Advisory Reports on Public Employment Labor Legislation: A Comparative Analysis, 67 Mich. L. Rev. 891 (1969); Summers, Public Employee Bargaining: A Political Perspective, 83 Yale L. J. 1156 (1974); Project, Collective Bargaining and Politics in Public Employment, 19 U. C. L. A. L. Rev. 887 (1972). The general description in the text of the differences between private and public-sector collective bargaining is drawn from these sources. [25] See, e. g., Anderson, Strikes and Impasse Resolution in Public Employment, 67 Mich. L. Rev. 943 (1969); Burton & Krider, The Role and Consequences of Strikes by Public Employees, 79 Yale L. J. 418 (1970); Hildebrand, supra, n. 24; Kheel, Strikes and Public Employment, 67 Mich. L. Rev. 931 (1969); Wellington & Winter, The Limits of Collective Bargaining in Public Employment, 78 Yale L. J. 1107 (1969); Wellington & Winter, More on Strikes by Public Employees, 79 Yale L. J. 441 (1970). [26] See n. 20, supra. [27] Employees of state and local governments may be subject to a \"little Hatch Act\" designed to ensure that government operates effectively and fairly, that public confidence in government is not undermined, and that government employees do not become a powerful political machine controlled by incumbent officials. See, e. g., Broadrick v. Oklahoma, 413 U.S. 601, 603-604; CSC v. Letter Carriers, 413 U.S. 548, 554-567. Moreover, there may be limits on the extent to which an employee in a sensitive or policymaking position may freely criticize his superiors and the policies they espouse. See Pickering v. Board of Education, 391 U.S. 563, 570 n. 3. [28] See, e. g., Wooley v. Maynard, 430 U.S. 705, 714 (the First Amendment \"secures the right to proselytize religious, political, and ideological causes\") (emphasis supplied); Young v. American Mini Theatres, 427 U.S. 50, 70 (plurality opinion) (protection of the First Amendment is fully applicable to the communication of social, political, or philosophical messages); id., at 87 (dissenting opinion) (even offensive speech that does not address \"important topics\" is not less worthy of constitutional protection); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96; Cohen v. California, 403 U.S. 15, 25, quoting Winters v. New York, 333 U.S. 507, 528 (Frankfurter, J., dissenting); Street v. New York, 394 U.S. 576, 593, quoting West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 641-642 (\" `[N]o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion'\") (emphasis supplied); NAACP v. Button, 371 U.S. 415, 444-445; Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 688 (suppression of a motion picture because it expresses the idea that under certain circumstances adultery may be proper behavior strikes at the very heart of First Amendment protection); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (\"it is immaterial whether the beliefs sought to be advanced . . . pertain to political, economic, religious, or cultural matters\"); Roth v. United States, 354 U.S. 476, 488, quoting Thornhill v. Alabama, 310 U.S. 88, 101-102. [29] In Lathrop v. Donohue, 367 U.S. 820, a companion case to Street, a lawyer sued for the refund of dues paid (under protest) to the integrated Wisconsin State Bar. The dues were required as a condition of practicing law in Wisconsin. The plaintiff contended that the requirement violated his constitutionally protected freedom of association because the dues were used by the State Bar to formulate and to support legislative proposals concerning the legal profession to which the plaintiff objected.\nA plurality of four Justices found that the requirement was not on its face unconstitutional, relying on the analogy to Hanson. And the plurality ruled, as had the Court in Hanson, that the constitutional questions tendered were not ripe, for the Court was nowhere \"clearly apprised as to the views of the appellant on any particular legislative issues on which the State Bar has taken a position, or as to the way in which and the degree to which funds compulsorily exacted from its members are used to support the organization's political activities.\" 367 U.S., at 845-846. The other five Members of the Court disagreed with the plurality and thought that the constitutional questions ought to be reached. Three Justices would have upheld the constitutionality of using compulsory dues to finance the State Bar's legislative activities even where opposed by dissenting members. See id., at 848 (Harlan, J., concurring in judgment); id., at 865 (Whittaker, J., concurring in result). The other two Justices would have held such activities to be unconstitutional. See ibid. (Black, J., dissenting); id., at 877 (Douglas, J., dissenting). The only proposition about which a majority of the Court in Lathrop agreed was that the constitutional issues should be reached. However, due to the disparate views of those five Justices on the merits and the failure of the other four Members of the Court to discuss the constitutional questions, Lathrop does not provide a clear holding to guide us in adjudicating the constitutional questions here presented. [30] See also Shelton v. Tucker, 364 U.S. 479 (state statute which required every teacher to file annually an affidavit listing every organization to which he had belonged or regularly contributed is unconstitutional because of its unlimited and indiscriminate interference with freedom of association). [31] This view has long been held. James Madison, the First Amendment's author, wrote in defense of religious liberty: \"Who does not see . . . [t]hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?\" 2 The Writings of James Madison 186 (Hunt ed. 1901). Thomas Jefferson agreed that \" `to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.' \" I. Brant, James Madison: The Nationalist 354 (1948). [32] To the extent that this activity involves support of political candidates, it must, of course, be conducted consistently with any applicable (and constitutional) system of election campaign regulation. See generally Buckley v. Valeo, 424 U.S. 1; Developments in the Law\u2014Elections, 88 Harv. L. Rev. 1111, 1237-1271 (1975). [33] The appellants' complaints also alleged that the Union carries on various \"social activities\" which are not open to nonmembers. It is unclear to what extent such activities fall outside the Union's duties as exclusive representative or involve constitutionally protected rights of association. Without greater specificity in the description of such activities and the benefit of adversary argument, we leave those questions in the first instance to the Michigan courts. [34] A further reason to avoid anticipating difficult constitutional questions in this case is the possibility that the dispute may be settled by resort to a newly adopted internal Union remedy. See infra, at 240, and n. 41. [35] It is plainly not an adequate remedy to limit the use of the actual dollars collected from dissenting employees to collective-bargaining purposes: \"[Such a limitation] is of bookkeeping significance only rather than a matter of real substance. It must be remembered that the service fee is admittedly the exact equal of membership initiation fees and monthly dues . . . and that . . . dues collected from members may be used for a `variety of purposes, in addition to meeting the union's costs of collective bargaining.' Unions `rather typically' use their membership dues `to do those things which the members authorize the union to do in their interest and on their behalf.' If the union's total budget is divided between collective bargaining and institutional expenses and if nonmember payments, equal to those of a member, go entirely for collective bargaining costs, the nonmember will pay more of these expenses than his pro rata share. The member will pay less and to that extent a portion of his fees and dues is available to pay institutional expenses. The union's budget is balanced. By paying a larger share of collective bargaining costs the nonmember subsidizes the union's institutional activities.\" Retail Clerks v. Schermerhorn, 373 U.S. 746, 753-754. [36] 29 U.S. C. \u00a7\u00a7 101-115. [37] See supra, at 234, and n. 30. [38] In proposing a restitution remedy, the Street opinion made clear that \"[t]here should be no necessity, however, for the employee to trace his money up to and including its expenditure; if the money goes into general funds and no separate accounts of receipts and expenditures of the funds of individual employees are maintained, the portion of his money the employee would be entitled to recover would be in the same proportion that the expenditures for political purposes which he had advised the union he disapproved bore to the total union budget.\" 367 U.S., at 775. [39] Allen can be viewed as a relaxation of the conditions established in Street governing eligibility for relief. See Allen, 373 U. S., at 129-131 (Harlan, J., concurring in part and dissenting in part). Street seemed to imply that an employee would be required to identify the particular causes which he opposed. 367 U.S., at 774-775. Any such implication was clearly disapproved in Allen, and, as explained today, see infra, at 241, there are strong reasons for preferring the approach of Allen. [40] The Court in Allen went on to elaborate: \"Since the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated, basic considerations of fairness compel that they, not the individual employees, bear the burden of proving such proportion. Absolute precision in the calculation of such proportion is not, of course, to be expected or required; we are mindful of the difficult accounting problems that may arise. And no decree would be proper which appeared likely to infringe the unions' right to expend uniform exactions under the union-shop agreement in support of activities germane to collective bargaining and, as well, to expend nondissenters' such exactions in support of political activities.\" 373 U.S., at 122. [41] Under the procedure adopted by the Union, as explained in the appellees' brief, a dissenting employee may protest at the beginning of each school year the expenditure of any part of his agency-shop fee for \" `activities or causes of a political nature or involving controversial issues of public importance only incidentally related to wages, hours, and conditions of employment.' \" The employee is then entitled to a pro rata refund of his service charge in accordance with the calculation of the portion of total Union expenses for the specified purposes. The calculation is made in the first instance by the Union, but is subject to review by an impartial board. [42] In Buckley v. Valeo, the Court recognized that compelled disclosure of political campaign contributions and expenditures \"can seriously infringe on privacy of association and belief guaranteed by the First Amendment.\" 424 U.S., at 64. See, e. g., Gibson v. Florida Legislative Comm., 372 U.S. 539; Bates v. Little Rock, 361 U.S. 516; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449. The Court noted that \"the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations,\" and that therefore our past decisions have extended constitutional protection to contributors and members interchangeably. 424 U.S., at 66, citing California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79 (POWELL, J., concurring); Bates v. Little Rock, supra, at 518; and United States v. Rumely, 345 U.S. 41.\nDisclosure of the specific causes to which an individual employee is opposed (which necessarily discloses, by negative implication, those causes the employee does support) may subject him to \"economic reprisal, . . . threat of physical coercion, and other manifestations of public hostility,\" and might dissuade him from exercising the right to withhold support \"because of fear of exposure of [his] beliefs . . . and of the consequences of this exposure.\" NAACP v. Alabama ex rel. Patterson, supra, at 462-463. [43] Although the appellants did not specifically pray for either of the remedies described in Street and Allen, the complaints in both Abood and Warczak included a general prayer for \"such further and other relief as may be necessary, or may to the Court seem just and equitable.\" The Warczak complaint was styled as a class action, but the trial court dismissed the complaint without addressing the propriety of class relief under Michigan law. We therefore have no occasion to address the question whether an individual employee who is not a named plaintiff but merely a member of the plaintiff class is, without more, entitled to relief under Street and Allen as a matter of federal law. [44] See supra, at 237-240, and nn. 38, 40. [45] We express no view as to the constitutional sufficiency of the internal remedy described by the appellees. If the appellants initially resort to that remedy and ultimately conclude that it is constitutionally deficient in some respect, they would of course be entitled to judicial consideration of the adequacy of the remedy. [*] The case is before us on the equivalent of a motion to dismiss. Ante, at 213-214, n. 4. Our knowledge of the facts is limited to a bald assertion that the Union engages \" `in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which plaintiffs do not approve . . . .' \" Ante, at 213, and n.3. What, if anything, will be proved at trial is a matter for conjecture. [1] The Court compared the union shop to the organized bar: \"On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar.\" 351 U.S., at 238. Mr. Justice Douglas, author of the Court's opinion in Hanson, later remarked that \"on reflection the analogy fails.\" Lathrop v. Donohue, 367 U.S. 820, 879 (1961) (dissenting opinion). [2] The Court today simply reads the separate opinion of Mr. Justice Douglas in Street as expressing the holding of the Court in Hanson. Ante, at 227 n. 23; see ante, at 222-223. While it may be possible to read Hanson this way, see n. 1, supra, it is certainly unnecessary to do so in light of the issues actually presented and resolved in that case. The Court offers no explanation of why Justices Frankfurter and Harlan, who believed that \"the scope and force of what Congress has done must be heeded,\" 367 U.S., at 807, would acquiesce in the finding of governmental action in Hanson if that finding represented a definitive ruling that governmental authorization of a private union-shop agreement subjects the agreement itself to the full constraints of the First Amendment. [3] Whether because no First Amendment interests were implicated, or because Congress had done nothing affirmatively to infringe such interests, or because any infringement of First Amendment interests was necessary to serve overriding governmental purposes, the Court was unanimous that the Railway Labor Act was constitutional insofar as it protected private agreements that would compel payment of sufficient fees to cover collective-bargaining costs. 367 U.S., at 771; 778 (Douglas, J., concurring); 779 (opinion of Whittaker, J.); 791 (Black, J., dissenting); 804 (Frankfurter, J., dissenting). [4] The Court explicitly reserved judgment on \"the matter of expenditures for activities in the area between the costs which led directly to the complaint as to `free riders,' and the expenditures to support union political activities.\" Id., at 769-770. [5] This is not to say, of course, that governmental authorization of private action is free from constitutional scrutiny under the Bill of Rights and the Fourteenth Amendment. The historical context of a facially permissive enactment may demonstrate that its purpose and effect are to bring about a result that the Constitution forbids the legislature to achieve by direct command. It is well established, for example, that a State cannot promote racial discrimination by laws designed to foster and encourage discriminatory practices in the private sector. See Reitman v. Mulkey, 387 U.S. 369 (1967); cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-177 (1972). And the Court in Street would not have read the Railway Labor Act as restrictively as it did, had it not been concerned that a broader reading might result in the indirect curtailment of First Amendment rights by Congress. But I am not aware that the Court has ever before held, as it apparently has today, that the same constitutional constraints invariably apply when the government fosters or encourages a result in the private sector by permissive legislation as when it commands that result by the full force of law. [6] See Note, Individual Rights in Industrial Self-Government\u2014A \"State Action\" Analysis, 63 Nw. U. L. Rev. 4 (1968); cf. Blumrosen, Group Interests in Labor Law, 13 Rutgers L. Rev. 432, 482-483 (1959). [7] If collective-bargaining agreements were subjected to the same constitutional constraints as federal rules and regulations, it would be difficult to find any stopping place in the constitutionalization of regulated private conduct. \"Most private activity is infused with the governmental in much the way that the union shop is. . . . Enacted and decisional law everywhere conditions and shapes the nature of private arrangements in our society. This is true with the commercial contract\u2014regulated as it is by comprehensive uniform statutes\u2014no less than with the collective bargaining agreement . . . .\" H. Wellington, Labor and the Legal Process 244-245 (1968). [8] Cf. Summers, Public Sector Bargaining: Problems of Governmental Decisionmaking, 44 U. Cin. L. Rev. 669, 670 (1975): \"The uniqueness of public employment is not in the employees nor in the work performed; the uniqueness is in the special character of the employer. The employer is government; the ones who act on behalf of the employer are public officials; and the ones to whom those officials are answerable are citizens and voters. We have developed a whole structure of constitutional and statutory principles, and a whole culture of political practices and attitudes as to how government is to be conducted, what powers public officials are to exercise, and how they are to be made answerable for their actions. Collective bargaining by public employers must fit within the governmental structure and must function consistently with our governmental processes; the problems of the public employer accommodating its collective bargaining function to government structures and processes is what makes public sector bargaining unique.\" [9] The Court's reliance on Hanson and Street is ambivalent, to say the least. Street construed \u00a7 2 Eleventh of the Railway Labor Act \"to deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes.\" 367 U.S., at 768-769. The opinion distinguishes not only between those union activities which are related to collective bargaining and those which are not, but \"between the use of union funds for political purposes and their expenditure for nonpolitical purposes.\" Id., at 769 n. 17. Yet the Court today repudiates the latter distinction, holding that nothing turns on whether union activity may be characterized as political. Ante, at 231-232. If it is true, as the Court believes, that Hanson and Street declare the limits of constitutional protection from a governmental union shop, ante, at 222-223, the Court's abandonment of the political-nonpolitical distinction drawn by those cases can only be explained by a desire to avoid its full implications in the public sector, where the subjects of bargaining are inherently political. See infra, at 256-258. [10] The leadership of the American Federation of Teachers, with which the local union involved in this case is affiliated, has apparently taken the position that collective bargaining should extend to every aspect of educational policy within the purview of the school board. See J. Weitzman, The Scope of Bargaining in Public Employment 85-88 (1975). [11] Michigan law requires public agencies to bargain with authorized unions on all \"conditions of employment,\" Mich. Comp. Laws \u00a7 423.211 (1970), but does not limit the permissible scope of public-sector bargaining to such conditions. [12] See Summers, supra, n. 8, at 672: \"The major decisions made in bargaining with public employees are inescapably political decisions. . . . Directly at issue are political questions of the size and allocation of the budget, the tax rates, the level of public services, and the long term obligations of the government. These decisions. . . are to be made by the political branches of government\u2014by elected officials who are politically responsible to the voters. . . .\" See also Hortonville School Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 495 (1976); Wellington & Winter, Structuring Collective Bargaining in Public Employment, 79 Yale L. J. 805, 858-860 (1970). [13] Compelled support of a private association is fundamentally different from compelled support of government. Clearly, a local school board does not need to demonstrate a compelling state interest every time it spends a taxpayer's money in ways the taxpayer finds abhorrent. But the reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people. The same cannot be said of a union, which is representative only of one segment of the population, with certain common interests. The withholding of financial support is fully protected as speech in this context. [14] The Court's failure to apply the established First Amendment standards articulated in Elrod v. Burns and Buckley v. Valeo is difficult to explain in light of its concession that disassociation with a union's activities is entitled to full First Amendment protection regardless of whether those activities may be characterized as political. Ante, at 231-232, and n. 28. One may only surmise that those in the majority today who joined the plurality opinion in Elrod hold the unarticulated belief that compelled support of a public-sector union makes better public policy than compelled support of a political party. I am at a loss to understand why the State's decision to adopt the agency shop in the public sector should be worthy of greater deference, when challenged on First Amendment grounds, than its decision to adhere to the tradition of political patronage. See Elrod, 427 U. S., at 376-380, 382-387 (POWELL, J., dissenting). [15] By stressing the Union's duty of fair representation, ante, at 221-222, the Court may be suggesting that the State has provided an adequate means for minority viewpoints to be heard within the Union. But even if Michigan law could be read to impose a broad obligation on the union to listen to and represent the viewpoints of all employees on such issues as curriculum reform, imposition of such an obligation on the Union could not relieve the school board of its responsibilities\u2014at least, it could not do so unless the Union were declared to be a public agency to which the State had delegated some part of the school board's power. Yet such a delegation of state power, covering an unlimited range of the school board's responsibility to set school policy, see nn. 10 and 11, supra, would itself raise grave constitutional issues. If power to determine school policy were shifted in part from officials elected by the population of the school district to officials elected by the school board's employees, the voters of the district could complain with force and reason that their voting power and influence on the decisionmaking process had been unconstitutionally diluted. See Kramer v. Union School Dist., 395 U.S. 621 (1969); Hadley v. Junior College Dist., 397 U.S. 50 (1970). [16] Unions in the public sector may be expected to spend money in a broad variety of ways, some of which are more closely related to collective bargaining than others, and some of which are more likely to stimulate \"ideological\" opposition than others. With respect to many of these expenditures, arriving at the appropriate reconciliation of the employees' First Amendment interests with the asserted governmental interests will be difficult.\nI should think that on some narrowly defined economic issues\u2014teachers' salaries and pension benefits, for example\u2014the case for requiring the teachers to speak through a single representative would be quite strong, while the concomitant limitation of First Amendment rights would be relatively insignificant. On such issues the case for requiring all teachers to contribute to the clearly identified costs of collective bargaining also would be strong, while the interest of the minority teacher, who is benefited directly, in withholding support would be comparatively weak. On other issues\u2014including such questions as how best to educate the young\u2014the strong First Amendment interests of dissenting employees might be expected to prevail. The same may be said of union activities other than bargaining. The processing of individual grievances may be an important union service for which a fee could be exacted with minimal intrusion on First Amendment interests. But other union actions\u2014such as a strike against a public agency\u2014may be so controversial and of such general public concern that compelled financial support by all employees should not be permitted under the Constitution.","meta":{"dup_signals":{"dup_doc_count":1064,"dup_dump_count":99,"dup_details":{"2024-30":1,"2024-26":1,"2024-22":2,"2024-18":4,"2024-10":5,"2017-13":4,"2015-18":35,"2015-11":31,"2015-06":32,"2014-10":16,"2013-48":22,"2013-20":16,"2023-50":2,"2023-40":3,"2023-23":2,"2023-14":2,"2023-06":2,"2022-49":4,"2022-40":3,"2022-33":3,"2022-27":4,"2022-21":3,"2022-05":4,"2021-49":1,"2021-43":1,"2021-39":6,"2021-31":4,"2021-25":2,"2021-21":7,"2021-17":1,"2021-10":5,"2021-04":1,"2020-50":3,"2020-45":2,"2020-40":8,"2020-34":3,"2020-29":2,"2020-24":1,"2020-16":3,"2020-10":4,"2020-05":3,"2019-51":4,"2019-47":3,"2019-43":3,"2019-39":4,"2019-35":6,"2019-30":3,"2019-26":4,"2019-22":4,"2019-18":3,"2019-13":3,"2019-09":2,"2019-04":2,"2018-51":4,"2018-47":2,"2018-43":6,"2018-39":4,"2018-34":1,"2018-30":4,"2018-26":2,"2018-22":1,"2018-17":4,"2018-13":4,"2018-09":4,"2018-05":5,"2017-51":4,"2017-47":6,"2017-43":5,"2017-39":10,"2017-34":3,"2017-30":6,"2017-26":4,"2017-22":9,"2017-17":5,"2017-09":30,"2017-04":7,"2016-50":8,"2016-44":15,"2016-40":14,"2016-36":14,"2016-30":13,"2016-26":3,"2016-22":6,"2016-18":6,"2016-07":30,"2015-48":34,"2015-40":22,"2015-35":35,"2015-32":33,"2015-27":25,"2015-22":14,"2015-14":25,"2014-52":34,"2014-49":40,"2014-42":67,"2014-41":50,"2014-35":50,"2014-23":51,"2014-15":46}}},"subset":"freelaw"}
{"text":"491 U.S. 397 (1989) TEXAS v. JOHNSON No. 88-155. Supreme Court of United States. Argued March 21, 1989 Decided June 21, 1989 CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS *398 Kathi Alyce Drew argued the cause for petitioner. With her on the briefs were John Vance and Dolena T. Westergard. William M. Kunstler argued the cause for respondent. With him on the brief was David D. Cole.[*] *399 JUSTICE BRENNAN delivered the opinion of the Court. After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not.\nI While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the \"Republican War Chest Tour.\" As explained in literature distributed by the demonstrators and in speeches made by them, the purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage \"die-ins\" intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings. The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted: \"America, the red, white, and blue, we spit on you.\" After the demonstrators dispersed, a witness to the flag burning collected the flag's remains and buried them in his backyard. No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning. *400 Of the approximately 100 demonstrators, Johnson alone was charged with a crime. The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex. Penal Code Ann. \u00a7 42.09(a)(3) (1989).[1] After a trial, he was convicted, sentenced to one year in prison, and fined $2,000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson's conviction, 706 S.W.2d 120 (1986), but the Texas Court of Criminal Appeals reversed, 755 S.W.2d 92 (1988), holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances. The Court of Criminal Appeals began by recognizing that Johnson's conduct was symbolic speech protected by the First Amendment: \"Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant's act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly `speech' contemplated by the First Amendment.\" Id., at 95. To justify Johnson's conviction for engaging in symbolic speech, the State asserted two interests: preserving the flag as a symbol of national unity and preventing breaches of the peace. The Court of Criminal Appeals held that neither interest supported his conviction. *401 Acknowledging that this Court had not yet decided whether the Government may criminally sanction flag desecration in order to preserve the flag's symbolic value, the Texas court nevertheless concluded that our decision in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), suggested that furthering this interest by curtailing speech was impermissible. \"Recognizing that the right to differ is the centerpiece of our First Amendment freedoms,\" the court explained, \"a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.\" 755 S.W.2d, at 97. Noting that the State had not shown that the flag was in \"grave and immediate danger,\" Barnette, supra, at 639, of being stripped of its symbolic value, the Texas court also decided that the flag's special status was not endangered by Johnson's conduct. 755 S.W.2d, at 97. As to the State's goal of preventing breaches of the peace, the court concluded that the flag-desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this particular case did not threaten such a reaction. \" `Serious offense' occurred,\" the court admitted, \"but there was no breach of peace nor does the record reflect that the situation was potentially explosive. One cannot equate `serious offense' with incitement to breach the peace.\" Id., at 96. The court also stressed that another Texas statute, Tex. Penal Code Ann. \u00a7 42.01 (1989), prohibited breaches of the peace. Citing Boos v. Barry, 485 U.S. 312 (1988), the court decided that \u00a7 42.01 demonstrated Texas' ability to prevent disturbances of the peace without punishing this flag desecration. 755 S.W.2d, at 96. *402 Because it reversed Johnson's conviction on the ground that \u00a7 42.09 was unconstitutional as applied to him, the state court did not address Johnson's argument that the statute was, on its face, unconstitutionally vague and overbroad. We granted certiorari, 488 U.S. 907 (1988), and now affirm.\nII Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words.[2] This fact *403 somewhat complicates our consideration of his conviction under the First Amendment. We must first determine whether Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction. See, e. g., Spence v. Washington, 418 U.S. 405, 409-411 (1974). If his conduct was expressive, we next decide whether the State's regulation is related to the suppression of free expression. See, e. g., United States v. O'Brien, 391 U.S. 367, 377 (1968); Spence, supra, at 414, n. 8. If the State's regulation is not related to expression, then the less stringent standard we announced in United States v. O'Brien for regulations of noncommunicative conduct controls. See O'Brien, supra, at 377. If it is, then we are outside of O'Brien's test, and we must ask whether this interest justifies Johnson's conviction under a more demanding standard.[3] See Spence, supra, at 411. A *404 third possibility is that the State's asserted interest is simply not implicated on these facts, and in that event the interest drops out of the picture. See 418 U.S., at 414, n. 8. The First Amendment literally forbids the abridgment only of \"speech,\" but we have long recognized that its protection does not end at the spoken or written word. While we have rejected \"the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea,\" United States v. O'Brien, supra, at 376, we have acknowledged that conduct may be \"sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,\" Spence, supra, at 409. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether \"[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.\" 418 U.S., at 410-411. Hence, we have recognized the expressive nature of students' wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 (1969); of a sit-in by blacks in a \"whites only\" area to protest segregation, Brown v. Louisiana, 383 U.S. 131, 141-142 (1966); of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam, Schacht v. United States, 398 U.S. 58 (1970); and of picketing about a wide variety of causes, see, e. g., Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 313-314 (1968); United States v. Grace, 461 U.S. 171, 176 (1983). Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag, Spence, supra, at 409-410; refusing to salute the flag, Barnette, 319 U. S., at 632; and displaying a red flag, Stromberg v. California, 283 U.S. 359, *405 368-369 (1931), we have held, all may find shelter under the First Amendment. See also Smith v. Goguen, 415 U.S. 566, 588 (1974) (WHITE, J., concurring in judgment) (treating flag \"contemptuously\" by wearing pants with small flag sewn into their seat is expressive conduct). That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country; it is, one might say, \"the one visible manifestation of two hundred years of nationhood.\" Id., at 603 (REHNQUIST, J., dissenting). Thus, we have observed: \"[T]he flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design.\" Barnette, supra, at 632. Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in \"America.\" We have not automatically concluded, however, that any action taken with respect to our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred. In Spence, for example, we emphasized that Spence's taping of a peace sign to his flag was \"roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy.\" 418 U.S., at 410. The State of Washington had conceded, in fact, that Spence's conduct was a form of communication, and we stated that \"the State's concession is inevitable on this record.\" Id., at 409. The State of Texas conceded for purposes of its oral argument in this case that Johnson's conduct was expressive conduct, Tr. of Oral Arg. 4, and this concession seems to us as *406 prudent as was Washington's in Spence. Johnson burned an American flag as part \u2014 indeed, as the culmination \u2014 of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag as follows: \"The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn't have been made at that time. It's quite a just position [juxtaposition]. We had new patriotism and no patriotism.\" 5 Record 656. In these circumstances, Johnson's burning of the flag was conduct \"sufficiently imbued with elements of communication,\" Spence, 418 U. S., at 409, to implicate the First Amendment.\nIII The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. See O'Brien, 391 U. S. at 376-377; Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Dallas v. Stanglin, 490 U.S. 19, 25 (1989). It may not, however, proscribe particular conduct because it has expressive elements. \"[W]hat might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription. A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires.\" Community for Creative Non-Violence v. Watt, 227 U. S. App. D. C. 19, 55-56, 703 F.2d 586, 622-623 (1983) (Scalia, J., dissenting) (emphasis in original), rev'd sub nom. Clark v. Community for Creative Non-Violence, supra. It is, in short, not simply the verbal or nonverbal nature of the expression, but the governmental *407 interest at stake, that helps to determine whether a restriction on that expression is valid. Thus, although we have recognized that where \" `speech' and `nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms,\" O'Brien, supra, at 376, we have limited the applicability of O'Brien's relatively lenient standard to those cases in which \"the governmental interest is unrelated to the suppression of free expression.\" Id., at 377; see also Spence, supra, at 414, n. 8. In stating, moreover, that O'Brien's test \"in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions,\" Clark, supra, at 298, we have highlighted the requirement that the governmental interest in question be unconnected to expression in order to come under O'Brien's less demanding rule. In order to decide whether O'Brien's test applies here, therefore, we must decide whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression. If we find that an interest asserted by the State is simply not implicated on the facts before us, we need not ask whether O'Brien's test applies. See Spence, supra, at 414, n. 8. The State offers two separate interests to justify this conviction: preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. We hold that the first interest is not implicated on this record and that the second is related to the suppression of expression.\nA Texas claims that its interest in preventing breaches of the peace justifies Johnson's conviction for flag desecration.[4]*408 However, no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march toward City Hall, Brief for Petitioner 34-36, it admits that \"no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning.\" Id., at 34. The State's emphasis on the protestors' disorderly actions prior to arriving at City Hall is not only somewhat surprising given that no charges were brought on the basis of this conduct, but it also fails to show that a disturbance of the peace was a likely reaction to Johnson's conduct. The only evidence offered by the State at trial to show the reaction to Johnson's actions was the testimony of several persons who had been seriously offended by the flag burning. Id., at 6-7. The State's position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis.[5] Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal \"function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or *409 even stirs people to anger.\" Terminiello v. Chicago, 337 U.S. 1, 4 (1949). See also Cox v. Louisiana, 379 U.S. 536, 551 (1965); Tinker v. Des Moines Independent Community School Dist. 393 U. S., at 508-509; Coates v. Cincinnati, 402 U.S. 611, 615 (1971); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56 (1988). It would be odd indeed to conclude both that \"if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection,\" FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) (opinion of STEVENS, J.), and that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence. Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression \"is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.\" Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan). To accept Texas' arguments that it need only demonstrate \"the potential for a breach of the peace,\" Brief for Petitioner 37, and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg. This we decline to do. Nor does Johnson's expressive conduct fall within that small class of \"fighting words\" that are \"likely to provoke the average person to retaliation, and thereby cause a breach of the peace.\" Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). No reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs. See id., at 572-573; Cantwell v. Connecticut, 310 U.S. 296, 309 (1940); FCC v. Pacifica Foundation, supra, at 745 (opinion of STEVENS, J.). *410 We thus conclude that the State's interest in maintaining order is not implicated on these facts. The State need not worry that our holding will disable it from preserving the peace. We do not suggest that the First Amendment forbids a State to prevent \"imminent lawless action.\" Brandenburg, supra, at 447. And, in fact, Texas already has a statute specifically prohibiting breaches of the peace, Tex. Penal Code Ann. \u00a7 42.01 (1989), which tends to confirm that Texas need not punish this flag desecration in order to keep the peace. See Boos v. Barry, 485 U. S., at 327-329.\nB The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity. In Spence, we acknowledged that the government's interest in preserving the flag's special symbolic value \"is directly related to expression in the context of activity\" such as affixing a peace symbol to a flag. 418 U.S., at 414, n. 8. We are equally persuaded that this interest is related to expression in the case of Johnson's burning of the flag. The State, apparently, is concerned that such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, that we do not enjoy unity as a Nation. These concerns blossom only when a person's treatment of the flag communicates some message, and thus are related \"to the suppression of free expression\" within the meaning of O'Brien. We are thus outside of O'Brien's test altogether.\nIV It remains to consider whether the State's interest in preserving the flag as a symbol of nationhood and national unity justifies Johnson's conviction. As in Spence, \"[w]e are confronted with a case of prosecution for the expression of an idea through activity,\" and \"[a]ccordingly, we must examine with particular care the interests *411 advanced by [petitioner] to support its prosecution.\" 418 U.S., at 411. Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values. See, e. g., Boos v. Barry, supra, at 318; Frisby v. Schultz, 487 U.S. 474, 479 (1988). Moreover, Johnson was prosecuted because he knew that his politically charged expression would cause \"serious offense.\" If he had burned the flag as a means of disposing of it because it was dirty or torn, he would not have been convicted of flag desecration under this Texas law: federal law designates burning as the preferred means of disposing of a flag \"when it is in such condition that it is no longer a fitting emblem for display,\" 36 U.S. C. \u00a7 176(k), and Texas has no quarrel with this means of disposal. Brief for Petitioner 45. The Texas law is thus not aimed at protecting the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that would cause serious offense to others.[6] Texas concedes as much: \"Section 42.09(b) reaches only those severe acts of physical abuse of the flag carried out in a way likely to be offensive. The statute mandates intentional or knowing abuse, that is, the kind of mistreatment that is not innocent, but rather is intentionally designed to seriously offend other individuals.\" Id., at 44. Whether Johnson's treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct.[7] Our decision in Boos v. Barry, supra, *412 tells us that this restriction on Johnson's expression is content based. In Boos, we considered the constitutionality of a law prohibiting \"the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into `public odium' or `public disrepute.' \" Id., at 315. Rejecting the argument that the law was content neutral because it was justified by \"our international law obligation to shield diplomats from speech that offends their dignity,\" id., at 320, we held that \"[t]he emotive impact of speech on its audience is not a `secondary effect' \" unrelated to the content of the expression itself. Id., at 321 (plurality opinion); see also id., at 334 (BRENNAN, J., concurring in part and concurring in judgment). According to the principles announced in Boos, Johnson's political expression was restricted because of the content of the message he conveyed. We must therefore subject the State's asserted interest in preserving the special symbolic character of the flag to \"the most exacting scrutiny.\" Boos v. Barry, supra, at 321.[8] *413 Texas argues that its interest in preserving the flag as a symbol of nationhood and national unity survives this close analysis. Quoting extensively from the writings of this Court chronicling the flag's historic and symbolic role in our society, the State emphasizes the \" `special place' \" reserved for the flag in our Nation. Brief for Petitioner 22, quoting Smith v. Goguen, 415 U. S., at 601 (REHNQUIST, J., dissenting). The State's argument is not that it has an interest simply in maintaining the flag as a symbol of something, no matter what it symbolizes; indeed, if that were the State's position, it would be difficult to see how that interest is endangered by highly symbolic conduct such as Johnson's. Rather, the State's claim is that it has an interest in preserving the flag as a symbol of nationhood and national unity, a symbol with a determinate range of meanings. Brief for Petitioner 20-24. According to Texas, if one physically treats the flag in a way that would tend to cast doubt on either the idea that nationhood and national unity are the flag's referents or that national unity actually exists, the message conveyed thereby is a harmful one and therefore may be prohibited.[9] *414 If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U. S., at 55-56; City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 72 (1983); Carey v. Brown, 447 U.S. 455, 462-463 (1980); FCC v. Pacifica Foundation, 438 U. S., at 745-746; Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976) (plurality opinion); Buckley v. Valeo, 424 U.S. 1, 16-17 (1976); Grayned v. Rockford, 408 U.S. 104, 115 (1972); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972); Bachellar v. Maryland, 397 U.S. 564, 567 (1970); O'Brien, 391 U. S., at 382; Brown v. Louisiana, 383 U. S., at 142-143; Stromberg v. California, 283 U. S., at 368-369. We have not recognized an exception to this principle even where our flag has been involved. In Street v. New York, 394 U.S. 576 (1969), we held that a State may not criminally punish a person for uttering words critical of the flag. Rejecting the argument that the conviction could be sustained on the ground that Street had \"failed to show the respect for our national symbol which may properly be demanded of every citizen,\" we concluded that \"the constitutionally guaranteed `freedom to be intellectually . . . diverse or even contrary,' and the `right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous.\" Id., at 593, quoting Barnette, 319 U. S., at 642. Nor may the government, we have held, compel conduct that would evince respect for the flag. \"To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.\" Id., at 634. *415 In holding in Barnette that the Constitution did not leave this course open to the government, Justice Jackson described one of our society's defining principles in words deserving of their frequent repetition: \"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.\" Id., at 642. In Spence, we held that the same interest asserted by Texas here was insufficient to support a criminal conviction under a flag-misuse statute for the taping of a peace sign to an American flag. \"Given the protected character of [Spence's] expression and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts,\" we held, \"the conviction must be invalidated.\" 418 U.S., at 415. See also Goguen, supra, at 588 (WHITE, J., concurring in judgment) (to convict person who had sewn a flag onto the seat of his pants for \"contemptuous\" treatment of the flag would be \"[t]o convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for communicating ideas unacceptable to the controlling majority in the legislature\"). In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.[10] To bring its argument outside our *416 precedents, Texas attempts to convince us that even if its interest in preserving the flag's symbolic role does not allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag. The State's argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here. See supra, at 402-403. In addition, both Barnette and Spence involved expressive conduct, not only verbal communication, and both found that conduct protected. Texas' focus on the precise nature of Johnson's expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea.[11] If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role \u2014 as where, for example, a person ceremoniously burns a dirty flag \u2014 we would be saying that when it comes to impairing the flag's physical integrity, the flag itself may be used as *417 a symbol \u2014 as a substitute for the written or spoken word or a \"short cut from mind to mind\" \u2014 only in one direction. We would be permitting a State to \"prescribe what shall be orthodox\" by saying that one may burn the flag to convey one's attitude toward it and its referents only if one does not endanger the flag's representation of nationhood and national unity. We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents. Indeed, in Schacht v. United States, we invalidated a federal statute permitting an actor portraying a member of one of our Armed Forces to \" `wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.' \" 398 U.S., at 60, quoting 10 U.S. C. \u00a7 772(f). This proviso, we held, \"which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment.\" Id., at 63. We perceive no basis on which to hold that the principle underlying our decision in Schacht does not apply to this case. To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do. See Carey v. Brown, 447 U. S., at 466-467. There is, moreover, no indication \u2014 either in the text of the Constitution or in our cases interpreting it \u2014 that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons *418 who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole \u2014 such as the principle that discrimination on the basis of race is odious and destructive \u2014 will go unquestioned in the marketplace of ideas. See Brandenburg v. Ohio, 395 U.S. 444 (1969). We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment. It is not the State's ends, but its means, to which we object. It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to \"preserv[e] the national flag as an unalloyed symbol of our country.\" Spence, 418 U. S., at 412. We reject the suggestion, urged at oral argument by counsel for Johnson, that the government lacks \"any state interest whatsoever\" in regulating the manner in which the flag may be displayed. Tr. of Oral Arg. 38. Congress has, for example, enacted precatory regulations describing the proper treatment of the flag, see 36 U.S. C. \u00a7\u00a7 173-177, and we cast no doubt on the legitimacy of its interest in making such recommendations. To say that the government has an interest in encouraging proper treatment of the flag, however, is not to say that it may criminally punish a person for burning a flag as a means of political protest. \"National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.\" Barnette, 319 U. S., at 640. We are fortified in today's conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson's will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown *419 man will change our Nation's attitude towards its flag. See Abrams v. United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting). Indeed, Texas' argument that the burning of an American flag \" `is an act having a high likelihood to cause a breach of the peace,' \" Brief for Petitioner 31, quoting Sutherland v. DeWulf, 323 F. Supp. 740, 745 (SD Ill. 1971) (citation omitted), and its statute's implicit assumption that physical mistreatment of the flag will lead to \"serious offense,\" tend to confirm that the flag's special role is not in danger; if it were, no one would riot or take offense because a flag had been burned. We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag \u2014 and it is that resilience that we reassert today. The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. \"To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.\" Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag *420A burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by \u2014 as one witness here did \u2014 according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.\nV Johnson was convicted for engaging in expressive conduct. The State's interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression. The judgment of the Texas Court of Criminal Appeals is therefore Affirmed. *420B JUSTICE KENNEDY, concurring. I write not to qualify the words JUSTICE BRENNAN chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks. The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right *421 in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics. With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt. For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free. CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE O'CONNOR join, dissenting. In holding this Texas statute unconstitutional, the Court ignores Justice Holmes' familiar aphorism that \"a page of history is worth a volume of logic.\" New York Trust Co. v. *422 Eisner, 256 U.S. 345, 349 (1921). For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here. At the time of the American Revolution, the flag served to unify the Thirteen Colonies at home, while obtaining recognition of national sovereignty abroad. Ralph Waldo Emerson's \"Concord Hymn\" describes the first skirmishes of the Revolutionary War in these lines: \"By the rude bridge that arched the flood Their flag to April's breeze unfurled, Here once the embattled farmers stood And fired the shot heard round the world.\" During that time, there were many colonial and regimental flags, adorned with such symbols as pine trees, beavers, anchors, and rattlesnakes, bearing slogans such as \"Liberty or Death,\" \"Hope,\" \"An Appeal to Heaven,\" and \"Don't Tread on Me.\" The first distinctive flag of the Colonies was the \"Grand Union Flag\" \u2014 with 13 stripes and a British flag in the left corner \u2014 which was flown for the first time on January 2, 1776, by troops of the Continental Army around Boston. By June 14, 1777, after we declared our independence from England, the Continental Congress resolved: \"That the flag of the thirteen United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation.\" 8 Journal of the Continental Congress 1774-1789, p. 464 (W. Ford ed. 1907). One immediate result of the flag's adoption was that American vessels harassing British shipping sailed under an authorized national flag. Without such a flag, the British could treat captured seamen as pirates and hang them summarily; with a national flag, such seamen were treated as prisoners of war. *423 During the War of 1812, British naval forces sailed up Chesapeake Bay and marched overland to sack and burn the city of Washington. They then sailed up the Patapsco River to invest the city of Baltimore, but to do so it was first necessary to reduce Fort McHenry in Baltimore Harbor. Francis Scott Key, a Washington lawyer, had been granted permission by the British to board one of their warships to negotiate the release of an American who had been taken prisoner. That night, waiting anxiously on the British ship, Key watched the British fleet firing on Fort McHenry. Finally, at daybreak, he saw the fort's American flag still flying; the British attack had failed. Intensely moved, he began to scribble on the back of an envelope the poem that became our national anthem: \"O say can you see by the dawn's early light What so proudly we hail'd at the twilight's last gleaming, Whose broad stripes & bright stars through the perilous fight O'er the ramparts we watch'd, were so gallantly streaming? And the rocket's red glare, the bomb bursting in air, Gave proof through the night that our flag was still there, O say does that star-spangled banner yet wave O'er the land of the free & the home of the brave?\" The American flag played a central role in our Nation's most tragic conflict, when the North fought against the South. The lowering of the American flag at Fort Sumter was viewed as the start of the war. G. Preble, History of the Flag of the United States of America 453 (1880). The Southern States, to formalize their separation from the Union, adopted the \"Stars and Bars\" of the Confederacy. The Union troops marched to the sound of \"Yes We'll Rally Round The Flag Boys, We'll Rally Once Again.\" President Abraham Lincoln refused proposals to remove from the *424 American flag the stars representing the rebel States, because he considered the conflict not a war between two nations but an attack by 11 States against the National Government. Id., at 411. By war's end, the American flag again flew over \"an indestructible union, composed of indestructible states.\" Texas v. White, 7 Wall. 700, 725 (1869). One of the great stories of the Civil War is told in John Greenleaf Whittier's poem, \"Barbara Frietchie\": \"Up from the meadows rich with corn, Clear in the cool September morn, The clustered spires of Frederick stand Green-walled by the hills of Maryland. Round about them orchards sweep, Apple- and peach-tree fruited deep, Fair as a garden of the Lord To the eyes of the famished rebel horde, On that pleasant morn of the early fall When Lee marched over the mountain wall, \u2014 Over the mountains winding down, Horse and foot, into Frederick town. Forty flags with their silver stars, Forty flags with their crimson bars, Flapped in the morning wind: the sun Of noon looked down, and saw not one. Up rose old Barbara Frietchie then, Bowed with her fourscore years and ten; Bravest of all in Frederick town, She took up the flag the men hauled down; In her attic-window the staff she set, To show that one heart was loyal yet. Up the street came the rebel tread, Stonewall Jackson riding ahead. Under his slouched hat left and right He glanced: the old flag met his sight. `Halt!' \u2014 the dust-brown ranks stood fast. `Fire!' \u2014 out blazed the rifle-blast. *425 It shivered the window, pane and sash; It rent the banner with seam and gash. Quick, as it fell, from the broken staff Dame Barbara snatched the silken scarf; She leaned far out on the window-sill, And shook it forth with a royal will. `Shoot, if you must, this old gray head, But spare your country's flag,' she said. A shade of sadness, a blush of shame, Over the face of the leader came; The nobler nature within him stirred To life at that woman's deed and word: `Who touches a hair of yon gray head Dies like a dog! March on!' he said. All day long through Frederick street Sounded the tread of marching feet: All day long that free flag tost Over the heads of the rebel host. Ever its torn folds rose and fell On the loyal winds that loved it well; And through the hill-gaps sunset light Shone over it with a warm good-night. Barbara Frietchie's work is o'er, And the Rebel rides on his raids no more. Honor to her! and let a tear Fall, for her sake, on Stonewall's bier. Over Barbara Frietchie's grave, Flag of Freedom and Union, wave! Peace and order and beauty draw Round thy symbol of light and law; And ever the stars above look down On thy stars below in Frederick town!\" In the First and Second World Wars, thousands of our countrymen died on foreign soil fighting for the American cause. At Iwo Jima in the Second World War, United States Marines fought hand to hand against thousands of *426 Japanese. By the time the Marines reached the top of Mount Suribachi, they raised a piece of pipe upright and from one end fluttered a flag. That ascent had cost nearly 6,000 American lives. The Iwo Jima Memorial in Arlington National Cemetery memorializes that event. President Franklin Roosevelt authorized the use of the flag on labels, packages, cartons, and containers intended for export as lend-lease aid, in order to inform people in other countries of the United States' assistance. Presidential Proclamation No. 2605, 58 Stat. 1126. During the Korean war, the successful amphibious landing of American troops at Inchon was marked by the raising of an American flag within an hour of the event. Impetus for the enactment of the Federal Flag Desecration Statute in 1967 came from the impact of flag burnings in the United States on troop morale in Vietnam. Representative L. Mendel Rivers, then Chairman of the House Armed Services Committee, testified that \"[t]he burning of the flag . . . has caused my mail to increase 100 percent from the boys in Vietnam, writing me and asking me what is going on in America.\" Desecration of the Flag, Hearings on H. R. 271 before Sub-committee No. 4 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 189 (1967). Representative Charles Wiggins stated: \"The public act of desecration of our flag tends to undermine the morale of American troops. That this finding is true can be attested by many Members who have received correspondence from servicemen expressing their shock and disgust of such conduct.\" 113 Cong. Rec. 16459 (1967). The flag symbolizes the Nation in peace as well as in war. It signifies our national presence on battleships, airplanes, military installations, and public buildings from the United States Capitol to the thousands of county courthouses and city halls throughout the country. Two flags are prominently placed in our courtroom. Countless flags are placed by the graves of loved ones each year on what was first called *427 Decoration Day, and is now called Memorial Day. The flag is traditionally placed on the casket of deceased members of the Armed Forces, and it is later given to the deceased's family. 10 U.S. C. \u00a7\u00a7 1481, 1482. Congress has provided that the flag be flown at half-staff upon the death of the President, Vice President, and other government officials \"as a mark of respect to their memory.\" 36 U.S. C. \u00a7 175(m). The flag identifies United States merchant ships, 22 U.S. C. \u00a7 454, and \"[t]he laws of the Union protect our commerce wherever the flag of the country may float.\" United States v. Guthrie, 17 How. 284, 309 (1855). No other American symbol has been as universally honored as the flag. In 1931, Congress declared \"The Star-Spangled Banner\" to be our national anthem. 36 U.S. C. \u00a7 170. In 1949, Congress declared June 14th to be Flag Day. \u00a7 157. In 1987, John Philip Sousa's \"The Stars and Stripes Forever\" was designated as the national march. Pub. L. 101-186, 101 Stat. 1286. Congress has also established \"The Pledge of Allegiance to the Flag\" and the manner of its deliverance. 36 U.S. C. \u00a7 172. The flag has appeared as the principal symbol on approximately 33 United States postal stamps and in the design of at least 43 more, more times than any other symbol. United States Postal Service, Definitive Mint Set 15 (1988). Both Congress and the States have enacted numerous laws regulating misuse of the American flag. Until 1967, Congress left the regulation of misuse of the flag up to the States. Now, however, 18 U.S. C. \u00a7 700(a) provides that: \"Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.\" Congress has also prescribed, inter alia, detailed rules for the design of the flag, 4 U.S. C. \u00a7 1, the time and occasion of flag's display, 36 U.S. C. \u00a7 174, the position and manner of *428 its display, \u00a7 175, respect for the flag, \u00a7 176, and conduct during hoisting, lowering, and passing of the flag, \u00a7 177. With the exception of Alaska and Wyoming, all of the States now have statutes prohibiting the burning of the flag.[1] Most of the state statutes are patterned after the Uniform Flag Act of 1917, which in \u00a7 3 provides: \"No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield.\" Proceedings of National Conference of Commissioners on Uniform State Laws 323-324 (1917). Most were passed by the States at about the time of World War I. Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972 Wash. U. L. Q. 193, 197. *429 The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another \"idea\" or \"point of view\" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag. More than 80 years ago in Halter v. Nebraska, 205 U.S. 34 (1907), this Court upheld the constitutionality of a Nebraska statute that forbade the use of representations of the American flag for advertising purposes upon articles of merchandise. The Court there said: \"For that flag every true American has not simply an appreciation but a deep affection. . . . Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.\" Id., at 41. Only two Terms ago, in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522 (1987), the Court held that Congress could grant exclusive use of the word \"Olympic\" to the United States Olympic Committee. The Court thought that this \"restrictio[n] on expressive speech properly [was] characterized as incidental to the primary congressional purpose of encouraging and rewarding the USOC's activities.\" Id., at 536. As the Court stated, \"when a word [or symbol] acquires value `as the result of organization and the expenditure of labor, skill, and money' by an entity, that entity constitutionally may obtain a limited property right in the word [or symbol].\" Id., at 532, quoting International News Service v. Associated Press, 248 *430 U. S. 215, 239 (1918). Surely Congress or the States may recognize a similar interest in the flag. But the Court insists that the Texas statute prohibiting the public burning of the American flag infringes on respondent Johnson's freedom of expression. Such freedom, of course, is not absolute. See Schenck v. United States, 249 U.S. 47 (1919). In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), a unanimous Court said: \"Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words \u2014 those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.\" Id., at 571-572 (footnotes omitted). The Court upheld Chaplinsky's conviction under a state statute that made it unlawful to \"address any offensive, derisive or annoying word to any person who is lawfully in any street or other public place.\" Id., at 569. Chaplinsky had told a local marshal, \" ` \"You are a God damned racketeer\" and a \"damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.\" ' \" Ibid. Here it may equally well be said that the public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. Johnson was free to make any verbal denunciation of the flag that he wished; indeed, he was *431 free to burn the flag in private. He could publicly burn other symbols of the Government or effigies of political leaders. He did lead a march through the streets of Dallas, and conducted a rally in front of the Dallas City Hall. He engaged in a \"die-in\" to protest nuclear weapons. He shouted out various slogans during the march, including: \"Reagan, Mondale which will it be? Either one means World War III\"; \"Ronald Reagan, killer of the hour, Perfect example of U. S. power\"; and \"red, white and blue, we spit on you, you stand for plunder, you will go under.\" Brief for Respondent 3. For none of these acts was he arrested or prosecuted; it was only when he proceeded to burn publicly an American flag stolen from its rightful owner that he violated the Texas statute. The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases \u2014 they clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with \"fighting words,\" so with flag burning, for purposes of the First Amendment: It is \"no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed\" by the public interest in avoiding a probable breach of the peace. The highest courts of several States have upheld state statutes prohibiting the public burning of the flag on the grounds that it is so inherently inflammatory that it may cause a breach of public order. See, e. g., State v. Royal, 113 N. H. 224, 229, 305 A.2d 676, 680 (1973); State v. Waterman, 190 N.W.2d 809, 811-812 (Iowa 1971); see also State v. Mitchell, 32 Ohio App. 2d 16, 30, 288 N.E.2d 216, 226 (1972). *432 The result of the Texas statute is obviously to deny one in Johnson's frame of mind one of many means of \"symbolic speech.\" Far from being a case of \"one picture being worth a thousand words,\" flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others. Only five years ago we said in City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984), that \"the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places.\" The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest \u2014 a form of protest that was profoundly offensive to many \u2014 and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. Thus, in no way can it be said that Texas is punishing him because his hearers \u2014 or any other group of people \u2014 were profoundly opposed to the message that he sought to convey. Such opposition is no proper basis for restricting speech or expression under the First Amendment. It was Johnson's use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished. Our prior cases dealing with flag desecration statutes have left open the question that the Court resolves today. In Street v. New York, 394 U.S. 576, 579 (1969), the defendant burned a flag in the street, shouting \"We don't need no damned flag\" and \"[i]f they let that happen to Meredith we don't need an American flag.\" The Court ruled that since the defendant might have been convicted solely on the basis of his words, the conviction could not stand, but it expressly reserved the question whether a defendant could constitutionally be convicted for burning the flag. Id., at 581. Chief Justice Warren, in dissent, stated: \"I believe that the States and Federal Government do have the power to protect the flag from acts of desecration and disgrace. . . . [I]t is difficult *433 for me to imagine that, had the Court faced this issue, it would have concluded otherwise.\" Id., at 605. Justices Black and Fortas also expressed their personal view that a prohibition on flag burning did not violate the Constitution. See id., at 610 (Black, J., dissenting) (\"It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American Flag an offense\"); id., at 615-617 (Fortas, J., dissenting) (\"[T]he States and the Federal Government have the power to protect the flag from acts of desecration committed in public. . . . [T]he flag is a special kind of personality. Its use is traditionally and universally subject to special rules and regulation. . . . A person may `own' a flag, but ownership is subject to special burdens and responsibilities. A flag may be property, in a sense; but it is property burdened with peculiar obligations and restrictions. Certainly . . . these special conditions are not per se arbitrary or beyond governmental power under our Constitution\"). In Spence v. Washington, 418 U.S. 405 (1974), the Court reversed the conviction of a college student who displayed the flag with a peace symbol affixed to it by means of removable black tape from the window of his apartment. Unlike the instant case, there was no risk of a breach of the peace, no one other than the arresting officers saw the flag, and the defendant owned the flag in question. The Court concluded that the student's conduct was protected under the First Amendment, because \"no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts.\" Id., at 415. The Court was careful to note, however, that the defendant \"was not charged under the desecration statute, nor did he permanently disfigure the flag or destroy it.\" Ibid. In another related case, Smith v. Goguen, 415 U.S. 566 (1974), the appellee, who wore a small flag on the seat of his trousers, was convicted under a Massachusetts flag-misuse statute that subjected to criminal liability anyone who *434 \"publicly . . . treats contemptuously the flag of the United States.\" Id., at 568-569. The Court affirmed the lower court's reversal of appellee's conviction, because the phrase \"treats contemptuously\" was unconstitutionally broad and vague. Id., at 576. The Court was again careful to point out that \"[c]ertainly nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags.\" Id., at 581-582. See also id., at 587 (WHITE, J., concurring in judgment) (\"The flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it. I would not question those statutes which proscribe mutilation, defacement, or burning of the flag or which otherwise protect its physical integrity, without regard to whether such conduct might provoke violence. . . . There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial. . . . The flag is itself a monument, subject to similar protection\"); id., at 591 (BLACKMUN, J., dissenting) (\"Goguen's punishment was constitutionally permissible for harming the physical integrity of the flag by wearing it affixed to the seat of his pants\"). But the Court today will have none of this. The uniquely deep awe and respect for our flag felt by virtually all of us are bundled off under the rubric of \"designated symbols,\" ante, at 417, that the First Amendment prohibits the government from \"establishing.\" But the government has not \"established\" this feeling; 200 years of history have done that. The government is simply recognizing as a fact the profound regard for the American flag created by that history when it enacts statutes prohibiting the disrespectful public burning of the flag. The Court concludes its opinion with a regrettably patronizing civics lecture, presumably addressed to the Members of both Houses of Congress, the members of the 48 state legislatures that enacted prohibitions against flag burning, and the troops fighting under that flag in Vietnam who objected to its *435 being burned: \"The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.\" Ante, at 419. The Court's role as the final expositor of the Constitution is well established, but its role as a Platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government. The cry of \"no taxation without representation\" animated those who revolted against the English Crown to found our Nation \u2014 the idea that those who submitted to government should have some say as to what kind of laws would be passed. Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people \u2014 whether it be murder, embezzlement, pollution, or flag burning. Our Constitution wisely places limits on powers of legislative majorities to act, but the declaration of such limits by this Court \"is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case.\" Fletcher v. Peck, 6 Cranch 87, 128 (1810) (Marshall, C. J.). Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted. The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight. I would uphold the Texas statute as applied in this case.[2] *436 JUSTICE STEVENS, dissenting. As the Court analyzes this case, it presents the question whether the State of Texas, or indeed the Federal Government, has the power to prohibit the public desecration of the American flag. The question is unique. In my judgment rules that apply to a host of other symbols, such as state flags, armbands, or various privately promoted emblems of political or commercial identity, are not necessarily controlling. Even if flag burning could be considered just another species of symbolic speech under the logical application of the rules that the Court has developed in its interpretation of the First Amendment in other contexts, this case has an intangible dimension that makes those rules inapplicable. A country's flag is a symbol of more than \"nationhood and national unity.\" Ante, at 407, 410, 413, and n. 9, 417, 420. It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas. The fleurs-de-lis and the tricolor both symbolized \"nationhood and national unity,\" but they had vastly different meanings. The message conveyed by some flags \u2014 the swastika, for example \u2014 may survive long after it has outlived its usefulness as a symbol of regimented unity in a particular nation. *437 So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival. The value of the flag as a symbol cannot be measured. Even so, I have no doubt that the interest in preserving that value for the future is both significant and legitimate. Conceivably that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States as ultimate guarantor of that freedom is without power to prohibit the desecration of its unique symbol. But I am unpersuaded. The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay. Similarly, in my considered judgment, sanctioning the public desecration of the flag will tarnish its value \u2014 both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression \u2014 including uttering words critical of the flag, see Street v. New York, 394 U.S. 576 (1969) \u2014 be employed. It is appropriate to emphasize certain propositions that are not implicated by this case. The statutory prohibition of flag desecration does not \"prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.\" West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943). The statute does not compel any conduct or any profession of respect for any idea or any symbol. *438 Nor does the statute violate \"the government's paramount obligation of neutrality in its regulation of protected communication.\" Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality opinion). The content of respondent's message has no relevance whatsoever to the case. The concept of \"desecration\" does not turn on the substance of the message the actor intends to convey, but rather on whether those who view the act will take serious offense. Accordingly, one intending to convey a message of respect for the flag by burning it in a public square might nonetheless be guilty of desecration if he knows that others \u2014 perhaps simply because they misperceive the intended message \u2014 will be seriously offended. Indeed, even if the actor knows that all possible witnesses will understand that he intends to send a message of respect, he might still be guilty of desecration if he also knows that this understanding does not lessen the offense taken by some of those witnesses. Thus, this is not a case in which the fact that \"it is the speaker's opinion that gives offense\" provides a special \"reason for according it constitutional protection,\" FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) (plurality opinion). The case has nothing to do with \"disagreeable ideas,\" see ante, at 409. It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset. The Court is therefore quite wrong in blandly asserting that respondent \"was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.\" Ante, at 411. Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spray-paint \u2014 or perhaps convey with a motion picture projector \u2014 his message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression. The prohibition would be supported by the legitimate interest in preserving the quality of an important *439 national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag.[*] The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for \u2014 and our history demonstrates that they are \u2014 it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration. I respectfully dissent. NOTES [*] Briefs of amici curiae urging reversal were filed for the Legal Affairs Council by Wyatt B. Durrette, Jr., and Bradley B. Cavedo; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar.\nBriefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Peter Linzer, James C. Harrington, and Steven R. Shapiro; for the Christic Institute et al. by James C. Goodale; and for Jasper Johns et al. by Robert G. Sugarman and Gloria C. Phares. [1] Texas Penal Code Ann. \u00a7 42.09 (1989) provides in full: \"\u00a7 42.09. Desecration of Venerated Object \"(a) A person commits an offense if he intentionally or knowingly desecrates: \"(1) a public monument; \"(2) a place of worship or burial; or \"(3) a state or national flag. \"(b) For purposes of this section, `desecrate' means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action. \"(c) An offense under this section is a Class A misdemeanor.\" [2] Because the prosecutor's closing argument observed that Johnson had led the protestors in chants denouncing the flag while it burned, Johnson suggests that he may have been convicted for uttering critical words rather than for burning the flag. Brief for Respondent 33-34. He relies on Street v. New York, 394 U.S. 576, 578 (1969), in which we reversed a conviction obtained under a New York statute that prohibited publicly defying or casting contempt on the flag \"either by words or act\" because we were persuaded that the defendant may have been convicted for his words alone. Unlike the law we faced in Street, however, the Texas flag-desecration statute does not on its face permit conviction for remarks critical of the flag, as Johnson himself admits. See Brief for Respondent 34. Nor was the jury in this case told that it could convict Johnson of flag desecration if it found only that he had uttered words critical of the flag and its referents.\nJohnson emphasizes, though, that the jury was instructed \u2014 according to Texas' law of parties \u2014 that \" `a person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.' \" Id., at 2, n. 2, quoting 1 Record 49. The State offered this instruction because Johnson's defense was that he was not the person who had burned the flag. Johnson did not object to this instruction at trial, and although he challenged it on direct appeal, he did so only on the ground that there was insufficient evidence to support it. 706 S.W.2d 120, 124 (Tex. App. 1986). It is only in this Court that Johnson has argued that the law-of-parties instruction might have led the jury to convict him for his words alone. Even if we were to find that this argument is properly raised here, however, we would conclude that it has no merit in these circumstances. The instruction would not have permitted a conviction merely for the pejorative nature of Johnson's words, and those words themselves did not encourage the burning of the flag as the instruction seems to require. Given the additional fact that \"the bulk of the State's argument was premised on Johnson's culpability as a sole actor,\" ibid., we find it too unlikely that the jury convicted Johnson on the basis of this alternative theory to consider reversing his conviction on this ground. [3] Although Johnson has raised a facial challenge to Texas' flag-desecration statute, we choose to resolve this case on the basis of his claim that the statute as applied to him violates the First Amendment. Section 42.09 regulates only physical conduct with respect to the flag, not the written or spoken word, and although one violates the statute only if one \"knows\" that one's physical treatment of the flag \"will seriously offend one or more persons likely to observe or discover his action,\" Tex. Penal Code Ann. \u00a7 42.09(b) (1989), this fact does not necessarily mean that the statute applies only to expressive conduct protected by the First Amendment. Cf. Smith v. Goguen, 415 U.S. 566, 588 (1974) (WHITE, J., concurring in judgment) (statute prohibiting \"contemptuous\" treatment of flag encompasses only expressive conduct). A tired person might, for example, drag a flag through the mud, knowing that this conduct is likely to offend others, and yet have no thought of expressing any idea; neither the language nor the Texas courts' interpretations of the statute precludes the possibility that such a person would be prosecuted for flag desecration. Because the prosecution of a person who had not engaged in expressive conduct would pose a different case, and because this case may be disposed of on narrower grounds, we address only Johnson's claim that \u00a7 42.09 as applied to political expression like his violates the First Amendment. [4] Relying on our decision in Boos v. Barry, 485 U.S. 312 (1988), Johnson argues that this state interest is related to the suppression of free expression within the meaning of United States v. O'Brien, 391 U.S. 367 (1968). He reasons that the violent reaction to flag burnings feared by Texas would be the result of the message conveyed by them, and that this fact connects the State's interest to the suppression of expression. Brief for Respondent 12, n. 11. This view has found some favor in the lower courts. See Monroe v. State Court of Fulton County, 739 F.2d 568, 574-575 (CA11 1984). Johnson's theory may overread Boos insofar as it suggests that a desire to prevent a violent audience reaction is \"related to expression\" in the same way that a desire to prevent an audience from being offended is \"related to expression.\" Because we find that the State's interest in preventing breaches of the peace is not implicated on these facts, however, we need not venture further into this area. [5] There is, of course, a tension between this argument and the State's claim that one need not actually cause serious offense in order to violate \u00a7 42.09. See Brief for Petitioner 44. [6] Cf. Smith v. Goguen, 415 U. S., at 590-591 (BLACKMUN, J., dissenting) (emphasizing that lower court appeared to have construed state statute so as to protect physical integrity of the flag in all circumstances); id., at 597-598 (REHNQUIST, J., dissenting) (same). [7] Texas suggests that Johnson's conviction did not depend on the onlookers' reaction to the flag burning because \u00a7 42.09 is violated only when a person physically mistreats the flag in a way that he \"knows will seriously offend one or more persons likely to observe or discover his action.\" Tex. Penal Code Ann. \u00a7 42.09(b) (1989) (emphasis added). \"The `serious offense' language of the statute,\" Texas argues, \"refers to an individual's intent and to the manner in which the conduct is effectuated, not to the reaction of the crowd.\" Brief for Petitioner 44. If the statute were aimed only at the actor's intent and not at the communicative impact of his actions, however, there would be little reason for the law to be triggered only when an audience is \"likely\" to be present. At Johnson's trial, indeed, the State itself seems not to have seen the distinction between knowledge and actual communicative impact that it now stresses; it proved the element of knowledge by offering the testimony of persons who had in fact been seriously offended by Johnson's conduct. Id., at 6-7. In any event, we find the distinction between Texas' statute and one dependent on actual audience reaction too precious to be of constitutional significance. Both kinds of statutes clearly are aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity. [8] Our inquiry is, of course, bounded by the particular facts of this case and by the statute under which Johnson was convicted. There was no evidence that Johnson himself stole the flag he burned, Tr. of Oral Arg. 17, nor did the prosecution or the arguments urged in support of it depend on the theory that the flag was stolen. Ibid. Thus, our analysis does not rely on the way in which the flag was acquired, and nothing in our opinion should be taken to suggest that one is free to steal a flag so long as one later uses it to communicate an idea. We also emphasize that Johnson was prosecuted only for flag desecration \u2014 not for trespass, disorderly conduct, or arson. [9] Texas claims that \"Texas is not endorsing, protecting, avowing or prohibiting any particular philosophy.\" Brief for Petitioner 29. If Texas means to suggest that its asserted interest does not prefer Democrats over Socialists, or Republicans over Democrats, for example, then it is beside the point, for Johnson does not rely on such an argument. He argues instead that the State's desire to maintain the flag as a symbol of nationhood and national unity assumes that there is only one proper view of the flag. Thus, if Texas means to argue that its interest does not prefer any viewpoint over another, it is mistaken; surely one's attitude toward the flag and its referents is a viewpoint. [10] Our decision in Halter v. Nebraska, 205 U.S. 34 (1907), addressing the validity of a state law prohibiting certain commercial uses of the flag, is not to the contrary. That case was decided \"nearly 20 years before the Court concluded that the First Amendment applies to the States by virtue of the Fourteenth Amendment.\" Spence v. Washington, 418 U.S. 405, 413, n. 7 (1974). More important, as we continually emphasized in Halter itself, that case involved purely commercial rather than political speech. 205 U.S., at 38, 41, 42, 45.\nNor does San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 524 (1987), addressing the validity of Congress' decision to \"authoriz[e] the United States Olympic Committee to prohibit certain commercial and promotional uses of the word `Olympic,' \" relied upon by THE CHIEF JUSTICE's dissent, post, at 429, even begin to tell us whether the government may criminally punish physical conduct towards the flag engaged in as a means of political protest. [11] THE CHIEF JUSTICE'S dissent appears to believe that Johnson's conduct may be prohibited and, indeed, criminally sanctioned, because \"his act. . . conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways.\" Post, at 431. Not only does this assertion sit uneasily next to the dissent's quite correct reminder that the flag occupies a unique position in our society \u2014 which demonstrates that messages conveyed without use of the flag are not \"just as forcefu[l]\" as those conveyed with it \u2014 but it also ignores the fact that, in Spence, supra, we \"rejected summarily\" this very claim. See 418 U.S., at 411, n. 4. [1] See Ala. Code \u00a7 13A-11-12 (1982); Ariz. Rev. Stat. Ann. \u00a7 13-3703 (1978); Ark. Code Ann. \u00a7 5-51-207 (1987); Cal. Mil. & Vet. Code Ann. \u00a7 614 (West 1988); Colo. Rev. Stat. \u00a7 18-11-204 (1986); Conn. Gen. Stat. \u00a7 53-258a (1985); Del. Code Ann., Tit. 11, \u00a7 1331 (1987); Fla. Stat. \u00a7\u00a7 256.05-256.051, 876.52 (1987); Ga. Code Ann. \u00a7 50-3-9 (1986); Haw. Rev. Stat. \u00a7 711-1107 (1988); Idaho Code \u00a7 18-3401 (1987); Ill. Rev. Stat., ch. 1, \u00b6\u00b6 3307, 3351 (1980); Ind. Code \u00a7 35-45-1-4 (1986); Iowa Code \u00a7 32.1 (1978 and Supp. 1989); Kan. Stat. Ann. \u00a7 21-4114 (1988); Ky. Rev. Stat. Ann. \u00a7 525.110 (Michie Supp. 1988); La. Rev. Stat. Ann. \u00a7 14:116 (West 1986); Me. Rev. Stat. Ann., Tit. 1, \u00a7 254 (1979); Md. Ann. Code, Art. 27, \u00a7 83 (1988); Mass. Gen. Laws \u00a7\u00a7 264, 265 (1987); Mich. Comp. Laws \u00a7 750.246 (1968); Minn. Stat. \u00a7 609.40 (1987); Miss. Code Ann. \u00a7 97-7-39 (1973); Mo. Rev. Stat. \u00a7 578.095 (Supp. 1989); Mont. Code Ann. \u00a7 45-8-215 (1987); Neb. Rev. Stat. \u00a7 28-928 (1985); Nev. Rev. Stat. \u00a7 201.290 (1986); N. H. Rev. Stat. Ann. \u00a7 646.1 (1986); N. J. Stat. Ann. \u00a7 2C:33-9 (West 1982); N. M. Stat. Ann. \u00a7 30-21-4 (1984); N. Y. Gen. Bus. Law \u00a7 136 (McKinney 1988); N. C. Gen. Stat. \u00a7 14-381 (1986); N. D. Cent. Code \u00a7 12.1-07-02 (1985); Ohio Rev. Code Ann. \u00a7 2927.11 (1987); Okla. Stat., Tit. 21, \u00a7 372 (1983); Ore. Rev. Stat. \u00a7 166.075 (1987); 18 Pa. Cons. Stat. \u00a7 2102 (1983); R. I. Gen. Laws \u00a7 11-15-2 (1981); S. C. Code \u00a7\u00a7 16-17-220, 16-17-230 (1985 and Supp. 1988); S. D. Codified Laws \u00a7 22-9-1 (1988); Tenn. Code Ann. \u00a7\u00a7 39-5-843, 39-5-847 (1982); Tex. Penal Code Ann. \u00a7 42.09 (1974); Utah Code Ann. \u00a7 76-9-601 (1978); Vt. Stat. Ann., Tit. 13, \u00a7 1903 (1974); Va. Code \u00a7 18.2-488 (1988); Wash. Rev. Code \u00a7 9.86.030 (1988); W. Va. Code \u00a7 61-1-8 (1989); Wis. Stat. \u00a7 946.05 (1985-1986). [2] In holding that the Texas statute as applied to Johnson violates the First Amendment, the Court does not consider Johnson's claims that the statute is unconstitutionally vague or overbroad. Brief for Respondent 24-30. I think those claims are without merit. In New York State Club Assn. v. City of New York, 487 U.S. 1, 11 (1988), we stated that a facial challenge is only proper under the First Amendment when a statute can never be applied in a permissible manner or when, even if it may be validly applied to a particular defendant, it is so broad as to reach the protected speech of third parties. While Tex. Penal Code Ann. \u00a7 42.09 (1989) \"may not satisfy those intent on finding fault at any cost, [it is] set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.\" CSC v. Letter Carriers, 413 U.S. 548, 579 (1973). By defining \"desecrate\" as \"deface,\" \"damage\" or otherwise \"physically mistreat\" in a manner that the actor knows will \"seriously offend\" others, \u00a7 42.09 only prohibits flagrant acts of physical abuse and destruction of the flag of the sort at issue here \u2014 soaking a flag with lighter fluid and igniting it in public \u2014 and not any of the examples of improper flag etiquette cited in respondent's brief. [*] The Court suggests that a prohibition against flag desecration is not content neutral because this form of symbolic speech is only used by persons who are critical of the flag or the ideas it represents. In making this suggestion the Court does not pause to consider the far-reaching consequences of its introduction of disparate-impact analysis into our First Amendment jurisprudence. It seems obvious that a prohibition against the desecration of a gravesite is content neutral even if it denies some protesters the right to make a symbolic statement by extinguishing the flame in Arlington Cemetery where John F. Kennedy is buried while permitting others to salute the flame by bowing their heads. Few would doubt that a protester who extinguishes the flame has desecrated the gravesite, regardless of whether he prefaces that act with a speech explaining that his purpose is to express deep admiration or unmitigated scorn for the late President. Likewise, few would claim that the protester who bows his head has desecrated the gravesite, even if he makes clear that his purpose is to show disrespect. In such a case, as in a flag burning case, the prohibition against desecration has absolutely nothing to do with the content of the message that the symbolic speech is intended to convey.","meta":{"dup_signals":{"dup_doc_count":1436,"dup_dump_count":96,"dup_details":{"2024-30":1,"2024-26":2,"2024-22":2,"2024-18":4,"2024-10":5,"2017-13":12,"2015-18":49,"2015-11":34,"2015-06":44,"2014-10":28,"2013-48":34,"2013-20":24,"2023-50":3,"2023-40":5,"2023-23":2,"2023-14":5,"2023-06":4,"2022-49":4,"2022-40":7,"2022-27":1,"2022-21":4,"2022-05":4,"2021-49":3,"2021-43":5,"2021-39":3,"2021-31":3,"2021-21":3,"2021-17":2,"2021-10":3,"2021-04":1,"2020-50":3,"2020-45":3,"2020-40":4,"2020-34":2,"2020-29":5,"2020-24":1,"2020-16":1,"2020-10":2,"2020-05":4,"2019-51":6,"2019-43":2,"2019-39":4,"2019-35":3,"2019-30":3,"2019-26":2,"2019-22":5,"2019-18":4,"2019-13":2,"2019-09":9,"2019-04":2,"2018-51":4,"2018-47":7,"2018-43":6,"2018-39":5,"2018-34":5,"2018-30":5,"2018-26":5,"2018-22":5,"2018-17":3,"2018-13":9,"2018-09":4,"2018-05":11,"2017-51":8,"2017-47":10,"2017-43":13,"2017-39":12,"2017-34":12,"2017-30":15,"2017-26":13,"2017-22":15,"2017-17":14,"2017-09":37,"2017-04":12,"2016-50":12,"2016-44":19,"2016-40":20,"2016-36":19,"2016-30":23,"2016-26":5,"2016-22":7,"2016-18":7,"2016-07":41,"2015-48":40,"2015-40":33,"2015-35":36,"2015-32":43,"2015-27":37,"2015-22":23,"2015-14":36,"2014-52":44,"2014-49":55,"2014-42":79,"2014-41":58,"2014-35":64,"2014-23":72,"2014-15":65}}},"subset":"freelaw"}
{"text":"159 F.3d 1117 UNITED STATES of America, Plaintiff-Appellee,v.Darlene M. EDWARDS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Richard W. BROWN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Earl D. SHEPPARD, also known as Skip Sheppard, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Bryan E. SHEPPARD, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.George Frank SHEPPARD, also known as Frank Sheppard,Defendant-Appellant. Nos. 97-2935, 97-2943, 97-3019, 97-3022 and 97-3028. United States Court of Appeals,Eighth Circuit. Submitted April 15, 1998.Decided Oct. 30, 1998.Rehearing and Suggestion for Rehearing En Banc Denied Dec.18, and Dec. 21, 1998.\nPaul S. Becker, Kansas City, MO, argued, for appellee. Will Bunch, North Kansas City, MO, argued, for appellant Darlene M. Edwards. John R. Osgood, Lees Summit, MO, argued, for appellant Richard W. Brown. Susan M. Hunt, Kansas City, MO, argued, for appellant Earl D. Sheppard. John O'Connor, Kansas City, MO, argued, for appellant Bryan E. Sheppard. Patrick W. Peters, Kansas City, MO, argued, for appellant George Frank Sheppard. Before LOKEN and LAY, Circuit Judges, and PRATT,* District Judge. LOKEN, Circuit Judge.\n1 Early in the morning on November 29, 1988, two Kansas City Fire Department pumpers arrived to fight two fires at a highway construction site in southeast Kansas City. The first pumper extinguished a burning pickup truck on the west side of the site and joined the second pumper on the east side, where an aluminum storage trailer containing 25,000 pounds of explosives was on fire. The trailer exploded, instantly killing six firefighters and igniting a second trailer filled with 30,000 pounds of explosives, which also exploded. Over seven years later, Darlene Edwards, Richard Brown, Earl (Skip) Sheppard, Bryan Sheppard, and Frank Sheppard were indicted and convicted of the capital offense of aiding and abetting arson that caused the deaths of the firefighters. They appeal their convictions and life sentences. The primary issue is whether their Confrontation Clause rights as defined in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and its progeny were violated by the government's reliance on testimony by numerous witnesses relating each defendant's out-of-court admissions of complicity, and by the district court's1 refusal to grant either their motions for severance or mistrial. The court instead allowed government witnesses to replace references in the admissions to codefendants with neutral pronouns and then instructed the jury to consider each admission only against the declarant. We affirm.\n2 I. Sufficiency of the Evidence.\n3 The highway construction site was patrolled by two security guards. At 3:15 a.m., one guard thought she saw two people walking down the highway. The guards looked for trespassers, leaving one of their vehicles, a pickup truck, parked on the west side. They drove to a nearby convenience store, the Quik Trip, and learned the store manager had not seen anyone. As the guards were leaving the store, a car pulled up and the driver yelled there was a fire at the construction site. The guards returned and reported their pickup truck was on fire and a second fire could be seen on the east side. At 4:08 a.m., the first trailer exploded, killing the six firefighters.\n4 Investigators concluded the pickup truck fire started when gasoline was poured into the driver's side of the cab and ignited, and the trailer fire began in the tire area and became so hot that the walls of the trailer ignited and caused the ANFO explosives to explode. The investigation into who caused the fires was frustrated by a lack of witnesses and surviving physical evidence. After years of dead ends, the explosions were reenacted on a national television program, Unsolved Mysteries, accompanied by a well-publicized $50,000 reward, extensive local publicity, and a phone number for reporting tips. Defendants lived in Marlborough, a neighborhood adjacent to the construction site. Frank and Skip Sheppard are brothers, Bryan Sheppard is their nephew, Richard Brown is Bryan Sheppard's best friend, and Darlene Edwards was living with Frank Sheppard at the time of the explosion. Many callers reported that defendants had repeatedly boasted of starting the fires. These indictments followed.\n5 The government's evidence at trial included Darlene Edwards's 1995 tape-recorded statement.2 Edwards told investigators that sometime between 1:30 and 2:30 a.m. Bryan Sheppard came to her house and asked if she would take Bryan and Richard Brown to get gas because their car had run out. Leaving Frank Sheppard asleep, Edwards drove Bryan and Brown to the nearby Quik Trip where they filled a gas can. They told Edwards their car was near the construction site, but when she neared the site her companions explained they planned to set a fire with the gasoline to divert security guards while they stole from the site. Edwards refused to go with them but agreed to drop them off. Over defense objections, the district court admitted a redacted version of this statement against Edwards. Additional evidence against her included three inmates who testified that Edwards told them, while she was incarcerated with them on other charges, that she and others had planned to steal tools and equipment from the construction site to sell or trade for drugs, and that she had driven the others to get gas to start a diversionary fire and cover up the thefts.\n6 Fifteen witnesses testified to admissions by Richard Brown, for example, that \"he went down there to steal and on the way down there they were out of gas and had to get some gas,\" that he got mad trying to get into the trailer and lit a fire with gas, and that they set a pickup truck and then a trailer on fire. Seven witnesses testified to admissions by Skip Sheppard, for example, that he and others had been at the site to steal, that \"they were stealing tools from the construction site,\" that they \"set fire to cover up the stuff they had taken,\" and that the \"gas came from the Quik Trip station on 71 Highway.\" Thirteen witnesses testified to admissions by Bryan Sheppard, for example, that \"they went to steal batteries and they set the fire to cover their tracks and they saw two security guards and they ran,\" and that \"he set a fire as a diversion to go steal some explosives.\" One witness overheard Bryan Sheppard say to Frank, \"I'm not like you and the other guys. I can't live with myself because of the death of them firemen, and it's eating me up.\" Twelve witnesses testified to admissions by Frank Sheppard, for example, that \"the fire was set as a diversion and that they didn't know explosives were in the dump truck,\" that \"someone had drove him and someone else to get some gas that they had used to start the fire,\" and that \"they were down there trying to get into the trucks and they weren't able to get anything and decided to pour gasoline on them and get them on fire.\" 7 Defendants argue the evidence was insufficient because the government did not introduce substantial independent evidence corroborating their out-of-court admissions. It is well-settled that \"a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.\" Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). However, \"[w]here the crime involves physical damage to person or property, the prosecution must [only] show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable.... There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it.\" Id. at 489-90 n. 15, 83 S. Ct. 407 (citations omitted); see also United States v. Jacobs, 97 F.3d 275, 283 (8th Cir.1996); United States v. Opdahl, 610 F.2d 490 (8th Cir.1979). Here, there was physical evidence that arson caused the pickup truck fire and circumstantial evidence that arson caused the trailer fire. Therefore, independent corroboration of the admissions was not required.\n8 Moreover, we reject defendants' premise that the government's case lacked corroborating evidence. Becky Edwards, Darlene's daughter, testified that she heard all five defendants planning to steal from the construction site about one week before the explosion. Investigators found a gas can on the site that did not belong to the construction contractors, and a witness testified that Frank and Skip Sheppard had many gas cans as part of their lawn mowing business. A number of witnesses saw the defendants in various groups in the Marlborough neighborhood before and after the explosions. One saw Richard Brown's car driving at high speed a short distance from the construction site three to five minutes after the first trailer exploded. Another saw Frank and Skip Sheppard and two others pull up to their mother's house near the construction site five to ten minutes after the explosion. Another saw Bryan Sheppard and Richard Brown around 7:30 a.m., after the explosion; Bryan smelled of gasoline and smoke and had numerous scratches and abrasions. Taken as a whole, the evidence tends to establish the trustworthiness of defendants' many admissions.\n9 Defendants further argue the government failed to prove that fire can cause ANFO to explode because its opinion evidence to this effect did not meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).3 Daubert was not argued to the district court, and the contention is without merit. Expert testimony would assist the jury on this issue, see Fed.R.Evid. 702, and the government's experts were well qualified. While admitting that ANFO ordinarily burns without exploding, one testified, \"once ANFO gets superheated and ... it's in a confined space, such as the trailers, they'll high order, and it's my opinion that's how this explosion occurred.\" The blast cone from the explosion was consistent with this hypothesis, and no more plausible explanation was put forth. The evidence was sufficient for a reasonable jury to find that defendants set the fire that caused the fatal explosions.\n10 Finally, defendants argue that inconsistencies between some of their admissions and other evidence make the admissions unreliable, and also that the evidence only established mere presence or mere association. We conclude these were issues for the jury. \"To convict under the aiding and abetting statute, 18 U.S.C \u00a7 2, the government need only prove that [each] defendant associated himself with the unlawful venture, participated in it as something he wished to bring about, and by his action sought to make the activity succeed.\" United States v. Clark, 980 F.2d 1143, 1146 (8th Cir.1992). Viewing the trial record in the light most favorable to the government, as we must, we conclude the evidence was more than sufficient to convict each defendant of aiding and abetting arson in violation of 18 U.S.C. \u00a7\u00a7 844(i) and 2.\n11 II. Confrontation Clause Issues.\n12 Prior to trial, the district court denied defendants' motions to sever the joint trial based on their contention that introduction of their numerous out-of-court admissions would violate the Sixth Amendment's Confrontation Clause as construed in Bruton. Instead, the court ordered Darlene Edwards's statement redacted to replace inculpatory references to her codefendants with neutral pronouns such as \"we,\" \"they,\" \"someone,\" and \"others.\" The court also approved the government's plan to instruct its witnesses not to mention the names of codefendants when testifying to each defendant's out-of-court admissions. During the trial, the court repeatedly instructed the jury to consider each admission only against the declarant. On appeal, defendants argue their Confrontation Clause rights were seriously compromised by the government's reliance on some fifty-nine witnesses who testified to defendants' various out-of-court admissions. No defendant testified at the trial.\n13 The principles that frame this issue were summarized in Richardson v. Marsh, 481 U.S. 200, 206-07, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987): 14 The right of confrontation includes the right to cross-examine witnesses. Therefore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.\n15 Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness \"against\" a defendant if the jury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption of the law that jurors follow their instructions.... In Bruton, however, we recognized a narrow exception to this principle: We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.\n16 In Bruton, a nontestifying codefendant's confession to a postal inspector specifically named petitioner Bruton. The Court held that a jury instruction to consider the confession only against the codefendant was inadequate to protect Bruton's Confrontation Clause rights. \"[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.\" 391 U.S. at 135-36, 88 S. Ct. 1620. The Court left open the question whether a confession or admission would be admissible against the declarant in a joint trial if it was redacted to eliminate references to codefendants. See 391 U.S. at 133-34 & n. 10, 88 S. Ct. 1620.\n17 In Richardson, the codefendant's written confession to police was redacted to eliminate all references to respondent Marsh. Observing that the jury is more likely to obey a limiting instruction when the confession is linked to a codefendant only by other trial evidence, the Court held \"that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.\" 481 U.S. at 211, 107 S. Ct. 1702.\n18 Richardson did not involve the common situation we face here--redactions that refer to joint activity with other culprits but eliminate any specific identification of the declarant's codefendants. The Supreme Court recently considered a variation of this problem in Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998). The codefendant's written confession to police was redacted by replacing specific references to petitioner Gray with a blank space or the word \"deleted\" or \"deletion.\" A police officer read the redacted confession and then testified that after receiving it, he was able to arrest Gray. Distinguishing Richardson, a closely divided Court held that this confession falls within the class of statements to which Bruton 's protections apply. \"The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the blank prominent on its face, in Richardson's words, 'facially incriminat[es]' the codefendant.\" 118 S. Ct. at 1157 (emphasis in original). The Court also emphasized the practical aspects of the redaction process: 19 Additional redaction of a confession that uses a blank space, the word \"delete,\" or a symbol, however, normally is possible. Consider as an example a portion of the confession before us: The witness who read the confession told the jury that the confession (among other things) said, 20 \"Question: Who was in the group that beat Stacey?\" 21 \"Answer: Me, deleted, deleted, and a few other guys.\" App. 11.\n22 Why could the witness not, instead, have said: 23 \"Question: Who was in the group that beat Stacey?\" 24 \"Answer: Me and a few other guys.\" 118 S. Ct. at 1157.\n25 Defendants argue the government's repeated use of out-of-court admissions that \"we\" or \"they\" went to the site to steal, and \"we\" or \"they\" set the fire, violated Bruton as construed in Gray.4 Neither Richardson nor Gray discussed the admissibility of confessions in which codefendants' names are replaced with a pronoun or similarly neutral word, as in this case. This court and other circuit courts have consistently upheld such evidence so long as the redacted confession or admission does not facially incriminate or lead the jury directly to a nontestifying declarant's codefendant. See United States v. Jones, 101 F.3d 1263, 1270 & n. 5 (8th Cir.1996) (use of \"we\" and \"they\"); United States v. Williams, 936 F.2d 698, 700-01 (2d Cir.1991) (\"another guy\"); United States v. Briscoe, 896 F.2d 1476, 1502 (7th Cir.1990) (\"we\"); United States v. Garcia, 836 F.2d 385, 390-91 (8th Cir.1987) (\"someone\"). We conclude the district court's decision to admit nontestifying defendant admissions, redacted as to codefendants by the use of pronouns and other neutral words, and accompanied by appropriate limiting instructions, was consistent with this court's decisions in Jones and Garcia and the Supreme Court's recent decision in Gray.\n26 Unlike use of the word \"deleted,\" which directs the jury's attention to an obvious redaction, referring to joint activity by use of the pronouns \"we\" and \"they,\" or by use of indefinite words such as \"someone,\" does not draw attention to the redaction and thus, in most situations, will not be incriminating unless linked to a codefendant by other trial evidence. See Jones, 101 F.3d at 1270. Here, for example, the evidence included references to a large cast of characters from the Marlborough neighborhood who were connected in various ways to the defendants. Some of the admissions inculpated nondefendants, thereby weakening any inference that words such as \"they\" and \"someone\" referred to the declarant's codefendants.5 With improper inferences thus weakened, it was appropriate to rely upon the normal rule that juries are presumed to obey instructions to disregard the evidence as to codefendants. In addition, this is not a situation, like the Court faced in Gray, in which additional redaction is normally possible. When an admission refers to joint activity, it is often impossible to eliminate all references to the existence of other people without distorting the declarant's statement. This was recognized in Gray, where the additional redaction favored--\"Me and a few other guys\"--has precisely the same effect as the redactions used in this case. Because joint trials \"play a vital role in the criminal justice system,\" it is important to adopt workable redaction standards. Richardson, 481 U.S. at 209, 107 S. Ct. 1702.\n27 Having concluded that the district court's approach to the overall joint trial and redaction issues was not infected with legal error, we must consider whether the court in implementing that approach abused its discretion in a way that requires a new joint trial or separate trials. First, defendants argue that the government's opening statement and closing argument require a new trial because the prosecutor undid the effect of the limiting instructions by urging the jury to use each defendant's admissions in evaluating codefendants' cases. See Richardson, 481 U.S. at 211, 107 S. Ct. 1702; compare Jones, 101 F.3d at 1270 n. 4, with United States v. Bennett, 848 F.2d 1134, 1142 (11th Cir.1988). We disagree. The prosecutor's opening accurately emphasized that each defendant had made out-of-court admissions--\"Each of these defendants told multiple persons on multiple occasions that they did it.\" In closing, the prosecutor summarized the testimony in the same manner it was presented to the jury--using neutral pronouns. There was no argument that any out-of-court admission facially incriminated a codefendant, and no argument that was inconsistent with the court's cautionary instructions to consider admissions only against the declarant.\n28 Second, invoking the rule of completeness, defendants argue the district court erred in prohibiting cross-examination to establish that an out-of-court admission was exculpatory as to one or more codefendants. For example, one witness testified Richard Brown said \"him and a group of people was there at the explosion.\" The phrase \"group of people\" was a redaction to avoid incriminating Bryan Sheppard and Skip Sheppard. The court ruled that counsel for Frank Sheppard could not ask the witness if Brown had mentioned him. This ruling was correct for two reasons. First, the rule of completeness protects only the nontestifying declarant. The rule is violated \"only when the [out-of-court] statement in its edited form, while protecting the sixth amendment rights of the co-defendant, effectively distorts the meaning of the statement or excludes information substantially exculpatory of the nontestifying defendant.\" United States v. Smith, 794 F.2d 1333, 1335 (8th Cir.) (emphasis added), cert. denied, 479 U.S. 938, 107 S. Ct. 419, 93 L. Ed. 2d 370 (1986). Second, the rule of completeness does not help Frank Sheppard here because the only reference to him (by omission) was exculpatory, and exculpatory out-of-court declarations are not admissible hearsay, even if they include a statement against the declarant's penal interest. See Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994); United States v. Ramsey, 999 F.2d 348, 351 (8th Cir.1993).6 29 There are also practical reasons why codefendants should not be able to invoke the rule of completeness to introduce otherwise inadmissible exculpatory hearsay. Enforcing the rule rigorously often runs the risk of violating an inculpated codefendant's Confrontation Clause rights by leading the jury straight to the conclusion that a redaction referred to him. See United States v. Long, 900 F.2d 1270, 1280 (8th Cir.1990). Thus, the district court in this multi-defendant trial was appropriately cautious in permitting cross-exam seeking to differentiate among the declarant's codefendants. Defendants were allowed to elicit that nondefendants were named in an admission to support the defense theory that others were responsible for the fire, and to clarify the number of people referred to by a plural pronoun, to negate any inference it might refer to all defendants. Some defendants received the benefit of directly exculpatory statements, such as Darlene Edwards's statement that she left Frank Sheppard at home asleep when she took others to get gasoline, and they were permitted to argue the significance of omissions in the out-of-court declarations. We conclude the district court did not abuse its discretion in the balance it struck between the nontestifying declarants' right to completeness and the nonconfessing defendants' Confrontation Clause rights.\n30 Defendants next argue the district court erred in denying their motions for mistrial on the few occasions when lay witnesses forgot their Bruton instructions and blurted out a codefendant's name instead of replacing it with a neutral pronoun.7 The government concedes these were mistakes. The district court immediately instructed the jury to disregard the blurted testimony, and it twice ordered the testimony stricken from the record. We have reviewed these instances, individually and cumulatively, and conclude the district court did not abuse its discretion in denying a mistrial.\n31 Finally, it is well-settled that Bruton errors are subject to harmless error analysis. See United States v. Miller, 995 F.2d 865, 867 (8th Cir.1993); Long, 900 F.2d at 1280; Garcia, 836 F.2d at 391. Darlene Edwards, Richard Brown, and Bryan Sheppard were virtually unaffected by Bruton issues. None of the blurted redaction failures named Edwards or Brown, and only references to \"my family, my friends\" and \"other defendants\" touched on them at all. No defendant objected to the \"my family, my friends\" mistake, and the district court struck the reference to \"other defendants\" and reminded the jury to only consider the evidence against the confessing defendant. The one blurted reference to Bryan Sheppard only said he was \"in on it,\" a relatively innocuous error in light of his numerous admissions of involvement. None of these defendants was affected by the district court's limitations on cross-exam, whereas the evidence against these defendants was overwhelming. We conclude any Bruton error was clearly harmless to these three defendants.\n32 Although Frank and Skip Sheppard were more directly affected by the Bruton issues, we conclude any error was harmless to them as well. Two redaction failures arguably affected Frank, but the district court's prompt curative actions reduced any prejudicial impact. Frank and Skip were most affected by the district court's limits on cross-exam, but any prejudice from the restrictions was minor in contrast to the properly admitted evidence. Twelve witnesses testified to admissions by Frank Sheppard, and seven witnesses testified to admissions by Skip. As to each, the admissions were specific, detailed, and consistent.\n33 For all the foregoing reasons, we conclude the district court did not abuse its discretion in denying defendants' various motions for mistrial, new trial, and severance.\n34 III. Statute of Limitations and Pre-indictment Delay Issues.\n35 The federal statute of limitations for non-capital crimes is five years. See 18 U.S.C. \u00a7 3282. The arson occurred in 1988, more than seven years prior to defendants' indictments. There is no limitations period for a capital offense, defined as \"any offense punishable by death.\" 18 U.S.C. \u00a7 3281. The arson statute provides that whoever commits arson resulting in death \"shall also be subject to ... the death penalty ... as provided in section 34 of this title.\" 18 U.S.C. \u00a7 844(i). Defendants argue their prosecutions are time-barred because the death penalty procedures in 18 U.S.C. \u00a7 34 were unconstitutional under Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), until amended in 1994, and therefore defendants could not have been subjected to the death penalty for their 1988 crimes. This argument was rejected in United States v. Manning, 56 F.3d 1188, 1196 (9th Cir.1995), where the court reasoned that \u00a7 3281 \"derive[\u00a7 its] justification from the serious nature of the crime rather than from a concern about, for example, what procedural protections those who face a penalty as grave as death are to receive.\" We agree with and follow the Manning decision.\n36 Defendants also argue the district court erred in denying their motion to dismiss the indictment because the nine-year pre-indictment delay violated their right to due process. Our cases hold that, to prevail on this claim, defendants have the burden of proving the delay was unreasonable and actually, substantially prejudiced the defense. See United States v. McDougal, 133 F.3d 1110, 1113 (8th Cir.1998); Bennett v. Lockhart, 39 F.3d 848, 851 (8th Cir.1994). Relying on Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992), defendants argue the government should have the burden to prove the absence of prejudice. This argument is without merit. Doggett involved a challenge to post-indictment delay under the Speedy Trial Clause of the Sixth Amendment. That Clause \"is wholly irrelevant\" to a Due Process Clause challenge to a pre-indictment delay. United States v. Lovasco, 431 U.S. 783, 788, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977); accord United States v. Bischel, 61 F.3d 1429, 1436 (9th Cir.1995); United States v. Byrd, 31 F.3d 1329, 1339-40 (5th Cir.1994).\n37 IV. Evidentiary Issues.\n38 A. Bad Acts Evidence. Defendants argue the district court violated Federal Rule of Evidence 404(b) in admitting testimony regarding their prior drug use and thievery. One witness testified: \"[Darlene] said they stole machinery and different tools from the construction site before and she sold it in trade for crack cocaine.\" This testimony was admissible under Rule 404(b) because it was relevant to motive--the government's claim that defendants went to the construction site to steal equipment to sell to buy drugs. Other witnesses testified that defendants' admissions occurred during drug use. Rule 404(b) does not bar evidence that completes the story of the crime or explains the relationship of parties or the circumstances surrounding a particular event. See United States v. Moore, 149 F.3d 773, 1998 WL 337961 * 5 (8th Cir.1998). The district court did not abuse its discretion in admitting this kind of background evidence. A jury \"cannot be expected to make its decision in a void--without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.\" United States v. Moore, 735 F.2d 289, 292 (8th Cir.1984).\n39 Darlene Edwards and Frank Sheppard argue the district court erred in admitting testimony that they admitted burning her car six weeks before the arson to collect insurance proceeds. The government offered this evidence to prove motive--that these defendants needed money to buy drugs. The district court did not abuse its broad discretion in concluding the prejudicial effect of this evidence did not outweigh its probative value. See United States v. Crouch, 46 F.3d 871, 875 (8th Cir.1995) (standard of review).\n40 B. Limits on Cross-Examination. Darlene Edwards argues the district court erred in limiting her cross-exam and impeachment intended to support Edwards's theory that one of the construction site security guards committed the arson to divert attention from the guard's insurance fraud. Bryan Sheppard argues the district court erred in restricting cross-exam regarding the criminal history of various government witnesses. Frank Sheppard argues the district court erred in not allowing cross-exam to impeach a witness by showing that her out-of-court statement that Darlene Edwards had taken a polygraph test was untrue. The district court allowed defense counsel to extensively cross-examine the government's witnesses. The rulings in question were not an abuse of the court's substantial discretion regarding issues of relevance, remoteness in time, and collateral impeachment. See United States v. Caldwell, 88 F.3d 522, 524 (8th Cir.1996) (standard of review).\n41 C. Excluded Polygraph Examinations. Bryan Sheppard and Richard Brown argue the district court erred in excluding favorable results of polygraph examinations without conducting a hearing under Daubert v. Merrell Dow, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The record on appeal does not reflect that defendants preserved this issue by offering the exam results into evidence and obtaining a ruling on their admissibility. If the district court did bar the admission of polygraph results, that ruling cannot be plain error. See United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998).\n42 D. Admission of Victim Photographs. The district court excluded a number of photographs of the deceased firefighters but admitted four of the less gruesome photographs. Defendants argue this was error because death was not an element of the crime and the photographs were too prejudicial. At the time this issue arose at trial, the court had advised counsel that it considered causing the firefighters' deaths to be an element of this crime under 18 U.S.C. \u00a7 844(i). In objecting to the photographs, defense counsel noted our decision to the contrary in United States v. Ryan, 9 F.3d at 668, but did not offer to stipulate that the government need not prove defendants caused the victims' death. Therefore, the photos were clearly relevant when admitted. The court did not abuse its discretion in concluding their probative value was not substantially outweighed by the risk of unfair prejudice. See Fed.R.Evid. 403; Walle v. Sigler, 456 F.2d 1153, 1154-55 (8th Cir.1972).\n43 E. Cross-Exam on Failure To Call a Witness. Richard Brown lived with his grandmother. His defense was that he was home asleep at the time of the explosions. His witnesses included a neighbor who testified to seeing him after the second explosion, dressed only in pants, with an elderly woman. Brown also called his uncle to rebut testimony that Brown's truck was seen speeding down the road moments after the first explosion. On cross-exam, the uncle acknowledged that Brown's grandmother had been called to testify and had come to the courthouse. The grandmother never testified, and during closing argument the government drew attention to her by saying, \"Why do you need grandma to alibi for you. Aren't you a big boy now?\" Brown argues this was improper cross-exam and closing argument warranting a new trial. We disagree. \"The prosecutor is free to comment on the failure of the defendant to call an available alibi witness.\" United States v. Schultz, 698 F.2d 365, 367 (8th Cir.1983).\n44 F. False Testimony Issues. Bryan Sheppard argues the government violated his right to due process by deliberately or negligently presenting false testimony. A government witness testified that Bryan made admissions at a home in the fall of 1989, a time when he was in prison. The district court denied Bryan's motion to strike this testimony as impossible but allowed defense counsel to effectively impeach the witness as to the date. Later in the trial, the error in the date was confirmed by the admission of jail records. The government argued in closing that the witness was mistaken as to the date but not the substance of the testimony. This episode falls well short of establishing that the government either knowingly elicited false evidence or allowed false evidence to go uncorrected. See Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); United States v. Martin, 59 F.3d 767, 770-71 (8th Cir.1995).\n45 Defendants also argue the government elicited false testimony that batteries were stolen from the construction site. The argument is based upon supposedly \"undisputed\" testimony of the construction contractor and subcontractor that nothing was ever stolen from the site. However, we agree with the district court that the evidence on this issue was contradictory. The defendants' out-of-court admissions included claims they had successfully stolen items from the site, including batteries. There was also evidence the construction workers did not keep track of used batteries. Thus, defendants failed to establish the government knowingly elicited false testimony on this issue.\n46 V. Other Trial Issues.\n47 A. A Discovery Issue. Defense counsel agreed in the pretrial Omnibus Hearing Report to provide the government, at least five days prior to trial, the names and addresses of their trial witnesses and copies of all statements made by each witness. Bryan Sheppard's witness list included \"[a]ny and all witnesses previously endorsed by the Government.\" When the government learned that defense counsel had recorded investigatory statements from some government witnesses, it moved to compel production of the statements as required by the Omnibus Hearing Report. Bryan Sheppard objected that these statements were merely for cross-examination and the listing of endorsed government witnesses was mere boiler plate. The district court concluded the statements were within the scope of the Hearing Report and compelled their production, and we denied Bryan's petition for a writ of mandamus on this issue. On appeal, Bryan argues the district court's order to produce violated the Jencks Act, 18 U.S.C. \u00a7 3500, and Fed.R.Crim.P. 26.2. We disagree. It may be that the government would not have been entitled to compulsory discovery of these witness statements. See Fed.R.Crim.P. 16(b)(2), 26.2(a); cf. United States v. White, 750 F.2d 726, 728 (8th Cir.1984). But that did not bar counsel from agreeing to mutual pretrial discovery in the Omnibus Hearing Report. The district court's order interpreting and enforcing that agreement was not an abuse of its substantial case management discretion.\n48 B. An Alibi Instruction Issue. Skip Sheppard argues the district court violated his right to have the jury consider a legally and factually supportable defense theory when it denied his requested alibi instruction: \"[if], after considering all the evidence, you have a reasonable doubt that defendant was present, then you must find him or her not guilty.\" See Eighth Circuit Pattern Jury Instruction No. 9.07. The court denied this request on the ground that Sheppard could be convicted of aiding and abetting an arson without being present at the site. There is certainly support for that analysis. See United States v. Agofsky, 20 F.3d 866, 871-72 (8th Cir.1994). On the other hand, the government's factual theory was that Skip Sheppard actually participated in the arson at the site, and Skip's alibi evidence--testimony by his ex-girlfriend--tended to refute that theory. With the merits of the alibi instruction issue rather closely balanced, we reject the contention on appeal for the reasons stated in United States v. Dawn, 897 F.2d 1444, 1450 (8th Cir.1990): \"The alibi defense was argued in closing, the jury was clearly instructed that the government had to prove all elements of the charge beyond a reasonable doubt, and the evidence against [Skip Sheppard] was relatively strong. The error, if any, was clearly harmless.\" 49 C. The Motion to Recuse. Frank Sheppard argues the district court abused its discretion in denying his motion for a new trial and recusal because a pattern of judicial comments and rulings reflected a bias calling into question the overall fairness of the trial. We have reviewed the rulings cited and conclude they do not reflect judicial bias. Nor do they establish that Sheppard was denied a fair trial. See United States v. Turner, 975 F.2d 490, 492-93 (8th Cir.1992) (standard of review).\n50 VI. Sentencing Issues.\n51 A. Life Imprisonment. Defendants argue they were improperly sentenced to life in prison under 18 U.S.C. \u00a7 844(i) because the firefighters proximately caused their own deaths by approaching the burning trailer despite being warned of explosives. Defendants challenge the district court's finding that the firefighters were not aware of the explosives in the trailers. We review that sentencing finding for clear error. See United States v. Berndt, 86 F.3d 803, 810 (8th Cir.1996). There was evidence that firefighters called to the construction site for previous fires were cautioned there were explosives on the scene. However, there was conflicting evidence whether the deceased firefighters were warned of explosives in the trailers that exploded. On this record, the court's finding that the firefighters were unaware of the explosives and therefore not negligent in continuing to fight the trailer fire was not clearly erroneous.\n52 B. Downward Departure. The district court applied U.S.S.G. \u00a7 2A1.1, the first-degree murder guideline, to determine defendants' base offense level for arson resulting in death. See U.S.S.G. \u00a7 2K1.4(c). Under \u00a7 2A1.1, the court may depart downward \"[i]f the defendant did not cause the death intentionally or knowingly.\" Richard Brown argues the district court erred in not departing downward for this reason. The court was aware of its discretion to depart downward. Therefore, its refusal to depart is not reviewable on appeal. See United States v. Tocco, 135 F.3d 116, 131 (2d Cir.1998).\n53 C. Evidence of Actual Innocence. Frank Sheppard argues the district court erred at sentencing by not admitting polygraph examination results suggesting he was innocent, and testimony suggesting he was too drunk to have committed the crime. It is not clear from the sentencing record that this issue was properly preserved. In any event, the court did not abuse its discretion in excluding evidence of actual innocence at a non-capital sentencing. Cf. Franklin v. Lynaugh, 487 U.S. 164, 172-74, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988).\n54 We have carefully considered the other issues and arguments raised by defendants on appeal and conclude they are without merit. The judgments of the district court are affirmed.\n* The HONORABLE ROBERT W. PRATT, United States District Judge for the Southern District of Iowa, sitting by designation 1 The HONORABLE JOSEPH E. STEVENS, JR., United States District Judge for the Western District of Missouri, presided over the trial after the HONORABLE D. BROOK BARTLETT, United States District Judge for the Western District of Missouri, withdrew from the case because of illness 2 Edwards argues the district court committed plain error by admitting a statement that was not against her penal interest. We disagree. The statement was properly admitted as the admission of a party opponent under Fed.R.Evid. 801(d)(2)(A). See United States v. Coco, 926 F.2d 759, 760 (8th Cir.1991) 3 Although the issue was not briefed, we doubt that causing the explosion was even an element of the government's case. See United States v. Ryan, 9 F.3d 660, 668 (8th Cir.1993), aff'd, 41 F.3d 361 (8th Cir.1994) (en banc) 4 Defendants' contention on appeal is that the district court erred in denying motions for severance, separate trials, and mistrials. These issues are reviewed under an abuse of discretion standard. See United States v. Donohue, 948 F.2d 438, 444 (8th Cir.1991). However, the Supreme Court in Gray treated the threshold question whether the trial court properly construed Bruton and its progeny in admitting redacted out-of-court declarations as an issue of law, and we do likewise 5 This is illustrated by the key admissions in the videotaped statement of Darlene Edwards, the only transcribed statement to authorities introduced at trial and therefore potentially the most incriminating of the many out-of-court declarations: Frank and I had come home.... Someone come up and said they'd run out of gas. Wanted to know, could I take them down to get some gas, right? ... Okay, and I took them down to Quik Trip.... The Quik Trip at 85th and 71 Highway. Yeah, they went around. They got some gas. They got in the car. They said the car was up the road. I said, what are you doing up there? They said, well, we're just doing 4-wheeling up in the hills, right? So, we get up there. Like, we're going to go over here and over there, and I said, what are you doing? Well, we're going to steal something. We're going, we're gonna take care of something. I said, well, look, I'm not staying here and playing if you are playing with gasoline. I'm not getting my funky ass blown up ... and I left them there, period! And then after I had gotten home and gotten in bed .... is probably what must have woke Frank up, you know, when I'd gotten undressed and got back in bed. As in Jones, the use of \"they\" and \"someone\" did not violate Bruton because \"the manner of presenting the confession and the context [did] not lead the jury directly to the [co]defendant[s].\" 101 F.3d at 1271 n. 5.\n6 Darlene Edwards, who as declarant may invoke the rule of completeness, argues the district court violated the rule by excluding a prior statement she gave police in which she denied any involvement in or knowledge of the arson. We disagree. The rule of completeness is limited to writings and only encompasses additional portions of the same statement. Moreover, the rule does not empower a court \"to admit unrelated hearsay in the interest of fairness and completeness when that hearsay does not come within a defined hearsay exception.\" United States v. Woolbright, 831 F.2d 1390, 1395 (8th Cir.1987) 7 One witness testified that Darlene Edwards said \"at one time Frank had made plans\" to steal from the construction site, and that Edwards \"would tell us about the gas, how she went to get the gas and different things that she did with the other defendants. \" Another witness testified when asked why he had not reported certain admissions to the police, \"it was after me and Richard [Brown] had had a conversation. I didn't believe him. I didn't believe him for one second but he told me at one point that Bryan Sheppard was in on it.\" Another witness testified that Skip Sheppard said \"he and a brother were\" at the construction site on the night of the explosion. Another said that when she asked Frank Sheppard why he had not called the police, he said, \"I can't turn in my family, my friends.\" (Emphasis added.)","meta":{"dup_signals":{"dup_doc_count":1226,"dup_dump_count":60,"dup_details":{"2023-06":1,"2022-27":1,"2022-21":1,"2021-49":1,"2020-16":1,"2020-10":2,"2019-47":1,"2019-30":2,"2019-18":1,"2019-09":2,"2018-43":1,"2018-39":1,"2018-30":1,"2018-22":3,"2018-17":10,"2018-13":9,"2018-09":5,"2018-05":15,"2017-51":8,"2017-47":9,"2017-43":14,"2017-39":14,"2017-34":14,"2017-30":18,"2017-26":15,"2017-22":14,"2017-17":24,"2017-09":30,"2017-04":36,"2016-50":33,"2016-44":34,"2016-40":39,"2016-36":30,"2016-30":35,"2016-26":40,"2016-22":34,"2016-18":38,"2016-07":37,"2015-48":34,"2015-40":25,"2015-35":34,"2015-32":27,"2015-27":27,"2015-22":37,"2015-14":22,"2014-52":13,"2014-49":22,"2014-42":29,"2014-41":46,"2014-35":45,"2014-23":41,"2014-15":27,"2024-10":1,"2017-13":20,"2015-18":37,"2015-11":25,"2015-06":35,"2014-10":35,"2013-48":38,"2013-20":32}}},"subset":"freelaw"}
{"text":"428 U.S. 52 (1976) PLANNED PARENTHOOD OF CENTRAL MISSOURI ET AL. v. DANFORTH, ATTORNEY GENERAL OF MISSOURI, ET AL. No. 74-1151. Supreme Court of United States. Argued March 23, 1976. Decided July 1, 1976.[*] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI. *55 Frank Susman argued the cause for appellants in No. 74-1151 and for appellees in No. 74-1419. With him on the brief was Judith Mears. John C. Danforth, pro se, Attorney General of Missouri, argued the cause for appellees in No. 74-1151 and for appellant in No. 74-1419. With him on the brief were D. Brook Bartlett, First Assistant Attorney General, and Karen M. Iverson and Christopher R. Brewster, Assistant Attorneys General.[\u2020] MR. JUSTICE BLACKMUN delivered the opinion of the Court. This case is a logical and anticipated corollary to Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), for it raises issues secondary to those that were then before the Court. Indeed, some of the questions now presented were forecast and reserved in Roe and Doe. 410 U. S., at 165 n. 67.\nI After the decisions in Roe and Doe, this Court remanded for reconsideration a pending Missouri federal case in which the State's then-existing abortion legislation, *56 Mo. Rev. Stat. \u00a7\u00a7 559.100, 542.380, and 563.300 (1969), was under constitutional challenge. Rodgers v. Danforth, 410 U.S. 949 (1973). A three-judge federal court for the Western District of Missouri, in an unreported decision, thereafter declared the challenged Missouri statutes unconstitutional and granted injunctive relief. On appeal here, that judgment was summarily affirmed. Danforth v. Rodgers, 414 U.S. 1035 (1973). In June 1974, somewhat more than a year after Roe and Doe had been decided, Missouri's 77th General Assembly, in its Second Regular Session, enacted House Committee Substitute for House Bill No. 1211 (hereinafter Act). The legislation was approved by the Governor on June 14, 1974, and became effective immediately by reason of an emergency clause contained in \u00a7 A of the statute. The Act is set forth in full as the Appendix to this opinion. It imposes a structure for the control and regulation of abortions in Missouri during all stages of pregnancy.\nII Three days after the Act became effective, the present litigation was instituted in the United States District Court for the Eastern District of Missouri. The plaintiffs are Planned Parenthood of Central Missouri, a not-for-profit Missouri corporation which maintains a facility in Columbia, Mo., for the performance of abortions; David Hall, M. D.; and Michael Freiman, M. D. Doctor Hall is a resident of Columbia, is licensed as a physician in Missouri, is chairman of the Department and Professor of Obstetrics and Gynecology at the University of Missouri Medical School at Columbia, and supervises abortions at the Planned Parenthood facility. He was described by the three-judge court in the 1973 case as one of four plaintiffs who were \"eminent, Missouri-licensed obstetricians and gynecologists.\" Jurisdictional *57 Statement, App. A7, in Danforth v. Rodgers, No. 73-426, O. T. 1973. Doctor Freiman is a resident of St. Louis, is licensed as a physician in Missouri, is an instructor of Clinical Obstetrics and Gynecology at Washington University Medical School, and performs abortions at two St. Louis hospitals and at a clinic in that city. The named defendants are the Attorney General of Missouri and the Circuit Attorney of the city of St. Louis \"in his representative capacity\" and \"as the representative of the class of all similar Prosecuting Attorneys of the various counties of the State of Missouri.\" Complaint 10. The plaintiffs brought the action on their own behalf and, purportedly, \"on behalf of the entire class consisting of duly licensed physicians and surgeons presently performing or desiring to perform the termination of pregnancies and on behalf of the entire class consisting of their patients desiring the termination of pregnancy, all within the State of Missouri.\" Id., at 9. Plaintiffs sought declaratory relief and also sought to enjoin enforcement of the Act on the ground, among others, that certain of its provisions deprived them and their patients of various constitutional rights: \"the right to privacy in the physician-patient relationship\"; the physicians' \"right to practice medicine according to the highest standards of medical practice\"; the female patients' right to determine whether to bear children; the patients' \"right to life due to the inherent risk involved in childbirth\" or in medical procedures alternative to abortion; the physicians' \"right to give and plaintiffs' patients' right to receive safe and adequate medical advice and treatment, pertaining to the decision of whether to carry a given pregnancy to term and the method of termination\"; the patients' right under the Eighth Amendment to be free from cruel and unusual punishment \"by forcing *58 and coercing them to bear each pregnancy they conceive\"; and, by being placed \"in the position of decision making beset with . . . inherent possibilities of bias and conflict of interest,\" the physician's right to due process of law guaranteed by the Fourteenth Amendment. Id., at 10-11. The particular provisions of the Act that remained under specific challenge at the end of trial were \u00a7 2 (2), defining the term \"viability\"; \u00a7 3 (2), requiring from the woman, prior to submitting to abortion during the first 12 weeks of pregnancy, a certification in writing that she consents to the procedure and \"that her consent is informed and freely given and is not the result of coercion\"; \u00a7 3 (3), requiring, for the same period, \"the written consent of the woman's spouse, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother\"; \u00a7 3 (4), requiring, for the same period, \"the written consent of one parent or person in loco parentis of the woman if the woman is unmarried and under the age of eighteen years, unless the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother\"; \u00a7 6 (1), requiring the physician to exercise professional care \"to preserve the life and health of the fetus\" and, failing such, deeming him guilty of manslaughter and making him liable in an action for damages; \u00a7 7, declaring an infant, who survives \"an attempted abortion which was not performed to save the life or health of the mother,\" to be \"an abandoned ward of the state under the jurisdiction of the juvenile court,\" and depriving the mother, and also the father if the consented to the abortion, of parental rights; \u00a7 9, the legislative finding that the method of abortion known as saline amniocentesis \"is deleterious to maternal health,\" and prohibiting that method after the first 12 weeks of pregnancy; and \u00a7\u00a7 10 *59 and 11, imposing reporting and maintenance of record requirements for health facilities and for physicians who perform abortions. The case was presented to a three-judge District Court convened pursuant to the provisions of 28 U.S. C. \u00a7\u00a7 2281 and 2284. 392 F. Supp. 1362 (1975). The court ruled that the two physician-plaintiffs had standing inasmuch as \u00a7 6 (1) provides that the physician who fails to exercise the prescribed standard of professional care due the fetus in the abortion procedure shall be guilty of manslaughter, and \u00a7 14 provides that any person who performs or aids in the performance of an abortion contrary to the provisions of the Act shall be guilty of a misdemeanor. 392 F. Supp., at 1366-1367. Due to this \"obvious standing\" of the two physicians, id., at 1367, the court deemed it unnecessary to determine whether Planned Parenthood also had standing. On the issues as to the constitutionality of the several challenged sections of the Act, the District Court, largely by a divided vote, ruled that all except the first sentence of \u00a7 6 (1) withstood the attack. That sentence was held to be constitutionally impermissible because it imposed upon the physician the duty to exercise at all stages of pregnancy \"that degree of professional skill, care and diligence to preserve the life and health of the fetus\" that \"would be required . . . to preserve the life and health of any fetus intended to be born.\" Inasmuch as this failed to exclude the stage of pregnancy prior to viability, the provision was \"unconstitutionally overbroad.\" 392 F. Supp., at 1371. One judge concurred in part and dissented in part. Id., at 1374. He agreed with the majority as to the constitutionality of \u00a7\u00a7 2 (2), 3 (2), 10, and 11, respectively relating to the definition of \"viability,\" the woman's prior written consent, maintenance of records, *60 and retention of records. He also agreed with the majority that \u00a7 6 (1) was unconstitutionally overbroad. He dissented from the majority opinion upholding the constitutionality of \u00a7\u00a7 3 (3), 3 (4), 7, and 9, relating, respectively, to spousal consent, parental consent, the termination of parental rights, and the proscription of saline amniocentesis. In No. 74-1151, the plaintiffs appeal from that part of the District Court's judgment upholding sections of the Act as constitutional and denying injunctive relief against their application and enforcement. In No. 74-1419, the defendant Attorney General cross-appeals from that part of the judgment holding \u00a7 6 (1) unconstitutional and enjoining enforcement thereof. We granted the plaintiffs' application for stay of enforcement of the Act pending appeal. 420 U.S. 918 (1975). Probable jurisdiction of both appeals thereafter was noted. 423 U.S. 819 (1975). For convenience, we shall usually refer to the plaintiffs as \"appellants\" and to both named defendants as \"appellees.\" III In Roe v. Wade the Court concluded that the \"right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.\" 410 U.S., at 153. It emphatically rejected, however, the proffered argument \"that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.\" Ibid. Instead, *61 this right \"must be considered against important state interests in regulation.\" Id., at 154. The Court went on to say that the \"pregnant woman cannot be isolated in her privacy,\" for she \"carries an embryo and, later, a fetus.\" Id., at 159. It was therefore \"reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.\" Ibid. The Court stressed the measure of the State's interest in \"the light of present medical knowledge.\" Id., at 163. It concluded that the permissibility of state regulation was to be viewed in three stages: \"For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician,\" without interference from the State. Id., at 164. The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Ibid. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability,[1] the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Id., at 163-165.\n*62 IV With the exception specified in n. 2, infra, we agree with the District Court that the physician-appellants clearly have standing. This was established in Doe v. Bolton, 410 U. S., at 188. Like the Georgia statutes challenged in that case, \"[t]he physician is the one against whom [the Missouri Act] directly operate[s] in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.\"[2]Ibid. Our primary task, then, is to consider each of the *63 challenged provisions of the new Missouri abortion statute in the particular light of the opinions and decisions in Roe and in Doe. To this we now turn, with the assistance of helpful briefs from both sides and from some of the amici.\nA The definition of viability. Section 2 (2) of the Act defines \"viability\" as \"that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems.\" Appellants claim that this definition violates and conflicts with the discussion of viability in our opinion in Roe. 410 U. S., at 160, 163. In particular, appellants object to the failure of the definition to contain any reference to a gestational time period, to its failure to incorporate and reflect the three stages of pregnancy, to the presence of the word \"indefinitely,\" and to the extra burden of regulation imposed. It is suggested that the definition expands the Court's definition of viability, as expressed in Roe, and amounts to a legislative determination of what is properly a matter for medical judgment. It is said that the \"mere possibility of momentary survival is not the medical standard of viability.\" Brief for Appellants 67. In Roe, we used the term \"viable,\" properly we thought, to signify the point at which the fetus is \"potentially able to live outside the mother's womb, albeit with artificial aid,\" and presumably capable of \"meaningful life outside the mother's womb,\" 410 U.S., at 160, 163. We noted that this point \"is usually placed\" at about seven months or 28 weeks, but may occur earlier. Id., at 160. We agree with the District Court and conclude that the definition of viability in the Act does not conflict with what was said and held in Roe. In fact, we believe that *64 \u00a7 2 (2), even when read in conjunction with \u00a7 5 (proscribing an abortion \"not necessary to preserve the life or health of the mother . . . unless the attending physician first certifies with reasonable medical certainty that the fetus is not viable\"), the constitutionality of which is not explicitly challenged here, reflects an attempt on the part of the Missouri General Assembly to comply with our observations and discussion in Roe relating to viability. Appellant Hall, in his deposition, had no particular difficulty with the statutory definition.[3] As noted above, we recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term. Section 2 (2) does the same. Indeed, one might argue, as the appellees do, that the presence of the statute's words \"continued indefinitely\" favor, rather than disfavor, the appellants, for, arguably, the point when life can be \"continued indefinitely outside the womb\" may well occur later in pregnancy than the point where the fetus is \"potentially able to live outside the mother's womb.\" Roe v. Wade, 410 U. S., at 160. In any event, we agree with the District Court that it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period. The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician. The definition of viability in \u00a7 2 (2) merely reflects this fact. The appellees do not contend otherwise, for they insist *65 that the determination of viability rests with the physician in the exercise of his professional judgment.[4] We thus do not accept appellants' contention that a specified number of weeks in pregnancy must be fixed by statute as the point of viability. See Wolfe v. Schroering, 388 F. Supp. 631, 637 (WD Ky. 1974); Hodgson v. Anderson, 378 F. Supp. 1008, 1016 (Minn. 1974), dismissed for want of jurisdiction sub nom. Spannaus v. Hodgson, 420 U.S. 903 (1975).[5] We conclude that the definition in \u00a7 2 (2) of the Act does not circumvent the limitations on state regulation outlined in Roe. We therefore hold that the Act's definition of \"viability\" comports with Roe and withstands the constitutional attack made upon it in this litigation.\nB The woman's consent. Under \u00a7 3 (2) of the Act, a woman, prior to submitting to an abortion during the first 12 weeks of pregnancy, must certify in writing her consent to the procedure and \"that her consent is informed and freely given and is not the result of coercion.\" Appellants argue that this requirement is violative of *66 Roe v. Wade, 410 U. S., at 164-165, by imposing an extra layer and burden of regulation on the abortion decision. See Doe v. Bolton, 410 U. S., at 195-200. Appellants also claim that the provision is overbroad and vague. The District Court's majority relied on the propositions that the decision to terminate a pregnancy, of course, \"is often a stressful one,\" and that the consent requirement of \u00a7 3 (2) \"insures that the pregnant woman retains control over the discretions of her consulting physician.\" 392 F. Supp., at 1368, 1369. The majority also felt that the consent requirement \"does not single out the abortion procedure, but merely includes it within the category of medical operations for which consent is required.\"[6]Id., at 1369. The third judge joined the majority in upholding \u00a7 3 (2), but added that the written consent requirement was \"not burdensome or chilling\" and manifested \"a legitimate interest of the state that this important decision has in fact been made by the person constitutionally empowered to do so.\" 392 F. Supp., at 1374. He went on to observe that the requirement \"in no way interposes the state or third parties in the decision-making process.\" Id., at 1375. We do not disagree with the result reached by the District Court as to \u00a7 3 (2). It is true that Doe and Roe clearly establish that the State may not restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy. Despite the fact that apparently no other Missouri statute, with the exceptions referred to in n. 6, supra, requires a *67 patient's prior written consent to a surgical procedure,[7] the imposition by \u00a7 3 (2) of such a requirement for termination of pregnancy even during the first stage, in our view, is not in itself an unconstitutional requirement. The decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent. We could not say that a requirement imposed by the State that a prior written consent for any surgery would be unconstitutional. As a consequence, we see no constitutional defect in requiring it only for some types of surgery as, for example, an intracardiac procedure, or where the surgical risk is elevated above a specified mortality level, or, for that matter, for abortions.[8] C The spouse's consent. Section 3 (3) requires the prior written consent of the spouse of the woman seeking an abortion during the first 12 weeks of pregnancy, unless *68 \"the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother.\"[9] The appellees defend \u00a7 3 (3) on the ground that it was enacted in the light of the General Assembly's \"perception of marriage as an institution,\" Brief for Appellee Danforth 34, and that any major change in family status is a decision to be made jointly by the marriage partners. Reference is made to an abortion's possible effect on the woman's childbearing potential. It is said that marriage always has entailed some legislatively imposed limitations: Reference is made to adultery and bigamy as criminal offenses; to Missouri's general requirement, Mo. Rev. Stat. \u00a7 453.030.3 (1969), that for an adoption of a child born in wedlock the consent of both parents is necessary; to similar joint-consent requirements imposed by a number of States with respect to artificial insemination and the legitimacy of children so conceived; to the laws of two States requiring spousal consent for voluntary sterilization; and to the long-established requirement of spousal consent for the effective disposition of an interest in real property. It is argued that \"[r]ecognizing that the consent of both parties is generally necessary. . . to begin a family, the legislature has determined that a change in the family structure set in motion by mutual consent should be terminated only by mutual consent,\" Brief for Appellee Danforth 38, and that what the legislature did was to exercise its inherent policy-making power \"for what was believed to be in the best interests of all the people of Missouri.\" Id., at 40. The appellants, on the other hand, contend that \u00a7 3 (3) obviously is designed to afford the husband the right unilaterally to prevent or veto an abortion, whether or *69 not he is the father of the fetus, and that this not only violates Roe and Doe but is also in conflict with other decided cases. See, e. g., Poe v. Gerstein, 517 F.2d 787, 794-796 (CA5 1975), appeal docketed, No. 75-713; Wolfe v. Schroering, 388 F. Supp., at 636-637; Doe v. Rampton, 366 F. Supp. 189, 193 (Utah 1973). They also refer to the situation where the husband's consent cannot be obtained because he cannot be located. And they assert that \u00a7 3 (3) is vague and overbroad. In Roe and Doe we specifically reserved decision on the question whether a requirement for consent by the father of the fetus, by the spouse, or by the parents, or a parent, of an unmarried minor, may be constitutionally imposed. 410 U.S., at 165 n. 67. We now hold that the State may not constitutionally require the consent of the spouse, as is specified under \u00a7 3 (3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present case, and with the courts whose decisions are cited above, that the State cannot \"delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.\" 392 F. Supp., at 1375. Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period. We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. See, e. g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Maynard v. Hill, 125 U. S. *70 190, 211 (1888).[10] Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).[11] *71 It seems manifest that, ideally, the decision to terminate a pregnancy should be one concurred in by both the wife and her husband. No marriage may be viewed as harmonious or successful if the marriage partners are fundamentally divided on so important and vital an issue. But it is difficult to believe that the goal of fostering mutuality and trust in a marriage, and of strengthening the marital relationship and the marriage institution, will be achieved by giving the husband a veto power exercisable for any reason whatsoever or for no reason at all. Even if the State had the ability to delegate to the husband a power it itself could not exercise, it is not at all. likely that such action would further, as the District Court majority phrased it, the \"interest of the state in protecting the mutuality of decisions vital to the marriage relationship.\" 392 F. Supp., at 1370. We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor. Cf. Roe v. Wade, 410 U. S., at 153. We conclude that \u00a7 3 (3) of the Missouri Act is inconsistent with the standards enunciated in Roe v. Wade, 410 U. S., at 164-165, and is unconstitutional. It is therefore unnecessary for us to consider the appellants' *72 additional challenges to \u00a7 3 (3) based on vagueness and overbreadth.\nD Parental Consent. Section 3 (4) requires, with respect to the first 12 weeks of pregnancy, where the woman is unmarried and under the age of 18 years, the written consent of a parent or person in loco parentis unless, again, \"the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother.\" It is to be observed that only one parent need consent. The appellees defend the statute in several ways. They point out that the law properly may subject minors to more stringent limitations than are permissible with respect to adults, and they cite, among other cases, Prince v. Massachusetts, 321 U.S. 158 (1944), and McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Missouri law, it is said, \"is replete with provisions reflecting the interest of the state in assuring the welfare of minors,\" citing statutes relating to a guardian ad litem for a court proceeding, to the care of delinquent and neglected children, to child labor, and to compulsory education. Brief for Appellee Danforth 42. Certain decisions are considered by the State to be outside the scope of a minor's ability to act in his own best interest or in the interest of the public, citing statutes proscribing the sale of firearms and deadly weapons to minors without parental consent, and other statutes relating to minors' exposure to certain types of literature, the purchase by pawnbrokers of property from minors, and the sale of cigarettes and alcoholic beverages to minors. It is pointed out that the record contains testimony to the effect that children of tender years (even ages 10 and 11) have sought abortions. Thus, a State's permitting a child to obtain an abortion without the counsel of an adult \"who has responsibility *73 or concern for the child would constitute an irresponsible abdication of the State's duty to protect the welfare of minors.\" Id., at 44. Parental discretion, too, has been protected from unwarranted or unreasonable interference from the State, citing Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1972). Finally, it is said that \u00a7 3 (4) imposes no additional burden on the physician because even prior to the passage of the Act the physician would require parental consent before performing an abortion on a minor. The appellants, in their turn, emphasize that no other Missouri statute specifically requires the additional consent of a minor's parent for medical or surgical treatment, and that in Missouri a minor legally may consent to medical services for pregnancy (excluding abortion), venereal disease, and drug abuse. Mo. Rev. Stat. \u00a7\u00a7 431.061-431.063 (Supp. 1975). The result of \u00a7 3 (4), it is said, \"is the ultimate supremacy of the parents' desires over those of the minor child, the pregnant patient.\" Brief for Appellants 93. It is noted that in Missouri a woman under the age of 18 who marries with parental consent does not require parental consent to abort, and yet her contemporary who has chosen not to marry must obtain parental approval. The District Court majority recognized that, in contrast to \u00a7 3 (3), the State's interest in protecting the mutuality of a marriage relationship is not present with respect to \u00a7 3 (4). It found \"a compelling basis,\" however, in the State's interest \"in safeguarding the authority of the family relationship.\" 392 F. Supp., at 1370. The dissenting judge observed that one could not seriously argue that a minor must submit to an abortion if her parents insist, and he could not see \"why she would not be entitled to the same right of self-determination now *74 explicitly accorded to adult women, provided she is sufficiently mature to understand the procedure and to make an intelligent assessment of her circumstances with the advice of her physician.\" Id., at 1376. Of course, much of what has been said above, with respect to \u00a7 3 (3), applies with equal force to \u00a7 3 (4). Other courts that have considered the parental-consent issue in the light of Roe and Doe, have concluded that a statute like \u00a7 3 (4) does not withstand constitutional scrutiny. See, e. g., Poe v. Gerstein, 517 F. 2d, at 792; Wolfe v. Schroering, 388 F. Supp., at 636-637; Doe v. Rampton, 366 F. Supp., at 193, 199; State v. Koome, 84 Wash. 2d 901, 530 P.2d 260 (1975). We agree with appellants and with the courts whose decisions have just been cited that the State may not impose a blanket provision, such as \u00a7 3 (4), requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy. Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent. Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. See, e. g., Breed v. Jones, 421 U.S. 519 (1975); Goss v. Lopez, 419 U.S. 565 (1975); Tinker v. Des Moines School Dist., 393 U.S. 503 (1969); In re Gault, 387 U.S. 1 (1967). The Court indeed, however, long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults. *75 Prince v. Massachusetts, 321 U. S., at 170; Ginsberg v. New York, 390 U.S. 629 (1968). It remains, then, to examine whether there is any significant state interest in conditioning an abortion on the consent of a parent or person in loco parentis that is not present in the case of an adult. One suggested interest is the safeguarding of the family unit and of parental authority. 392 F. Supp., at 1370. It is difficult, however, to conclude that providing a parent with absolute power to overrule a determination, made by the physician and his minor patient, to terminate the patient's pregnancy will serve to strengthen the family unit. Neither is it likely that such veto power will enhance parental authority or control where the minor and the nonconsenting parent are so fundamentally in conflict and the very existence of the pregnancy already has fractured the family structure. Any independent interest the parent may have in the termination of the minor daughter's pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant. We emphasize that our holding that \u00a7 3 (4) is invalid does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy. See Bellotti v. Baird, post, p. 132. The fault with \u00a7 3 (4) is that it imposes a special-consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy and does so without a sufficient justification for the restriction. It violates the strictures of Roe and Doe.\nE Saline amniocentesis. Section 9 of the statute prohibits the use of saline amniocentesis, as a method or technique of abortion, after the first 12 weeks of pregnancy. *76 It describes the method as one whereby the amniotic fluid is withdrawn and \"a saline or other fluid\" is inserted into the amniotic sac. The statute imposes this proscription on the ground that the technique \"is deleterious to maternal health,\" and places it in the form of a legislative finding. Appellants challenge this provision on the ground that it operates to preclude virtually all abortions after the first trimester. This is so, it is claimed, because a substantial percentage, in the neighborhood of 70% according to the testimony, of all abortions performed in the United States after the first trimester are effected through the procedure of saline amniocentesis. Appellants stress the fact that the alternative methods of hysterotomy and hysterectomy are significantly more dangerous and critical for the woman than the saline technique; they also point out that the mortality rate for normal childbirth exceeds that where saline amniocentesis is employed. Finally, appellants note that the perhaps safer alternative of prostaglandin instillation, suggested and strongly relied upon by the appellees, at least at the time of the trial, is not yet widely used in this country. We held in Roe that after the first stage, \"the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.\" 410 U.S., at 164. The question with respect to \u00a7 9 therefore is whether the flat prohibition of saline amniocentesis is a restriction which \"reasonably relates to the preservation and protection of maternal health.\" Id., at 163. The appellees urge that what the Missouri General Assembly has done here is consistent with that guideline and is buttressed by substantial supporting medical evidence in the record to which this Court should defer. *77 The District Court's majority determined, on the basis of the evidence before it, that the maternal mortality rate in childbirth does, indeed, exceed the mortality rate where saline amniocentesis is used. Therefore, the majority acknowledged, \u00a7 9 could be upheld only if there were safe alternative methods of inducing abortion after the first 12 weeks. 392 F. Supp., at 1373. Referring to such methods as hysterotomy, hysterectomy, \"mechanical means of inducing abortion,\" and prostaglandin injection, the majority said that at least the latter two techniques were safer than saline. Consequently, the majority concluded, the restriction in \u00a7 9 could be upheld as reasonably related to maternal health. We feel that the majority, in reaching its conclusion, failed to appreciate and to consider several significant facts. First, it did not recognize the prevalence, as the record conclusively demonstrates, of the use of saline amniocentesis as an accepted medical procedure in this country; the procedure, as noted above, is employed in a substantial majority (the testimony from both sides ranges from 68% to 80%) of all post-first-trimester abortions. Second, it failed to recognize that at the time of trial, there were severe limitations on the availability of the prostaglandin technique, which, although promising, was used only on an experimental basis until less than two years before. See Wolfe v. Schroering, 388 F. Supp., at 637, where it was said that at that time (1974), there were \"no physicians in Kentucky competent in the technique of prostaglandin amnio infusion.\" And appellees offered no evidence that prostaglandin abortions were available in Missouri.[12] Third, the statute's *78 reference to the insertion of \"a saline or other fluid\" appears to include within its proscription the intra-amniotic injection of prostaglandin itself and other methods that may be developed in the future and that may prove highly effective and completely safe. Finally, the majority did not consider the anomaly inherent in \u00a7 9 when it proscribes the use of saline but does not prohibit techniques that are many times more likely to result in maternal death. See 392 F. Supp., at 1378 n. 8 (dissenting opinion). These unappreciated or overlooked factors place the State's decision to bar use of the saline method in a completely different light. The State, through \u00a7 9, would prohibit the use of a method which the record shows is the one most commonly used nationally by physicians after the first trimester and which is safer, with respect to maternal mortality, than even continuation of the pregnancy until normal childbirth. Moreover, *79 as a practical matter, it forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed. As so viewed, particularly in the light of the present unavailability\u2014as demonstrated by the record\u2014of the prostaglandin technique, the outright legislative proscription of saline fails as a reasonable regulation for the protection of maternal health. It comes into focus, instead, as an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks. As such, it does not withstand constitutional challenge. See Wolfe v. Schroering, 388 F. Supp., at 637.\nF Recordkeeping. Sections 10 and 11 of the Act impose recordkeeping requirements for health facilities and physicians concerned with abortions irrespective of the pregnancy stage. Under \u00a7 10, each such facility and physician is to be supplied with forms \"the purpose and function of which shall be the preservation of maternal health and life by adding to the sum of medical knowledge through the compilation of relevant maternal health and life data and to monitor all abortions performed to assure that they are done only under and in accordance with the provisions of the law.\" The statute states that the information on the forms \"shall be confidential and shall be used only for statistical purposes.\" The \"records, however, may be inspected and health data acquired by local, state, or national public health officers.\" Under \u00a7 11 the records are to be kept for seven years in the permanent files of the health facility where the abortion was performed. Appellants object to these reporting and recordkeeping provisions on the ground that they, too, impose an extra *80 layer and burden of regulation, and that they apply throughout all stages of pregnancy. All the judges of the District Court panel, however, viewed these provisions as statistical requirements \"essential to the advancement of medical knowledge,\" and as nothing that would \"restrict either the abortion decision itself or the exercise of medical judgment in performing an abortion.\" 392 F. Supp., at 1374. One may concede that there are important and perhaps conflicting interests affected by recordkeeping requirements. On the one hand, maintenance of records indeed may be helpful in developing information pertinent to the preservation of maternal health. On the other hand, as we stated in Roe, during the first stage of pregnancy the State may impose no restrictions or regulations governing the medical judgment of the pregnant woman's attending physician with respect to the termination of her pregnancy. 410 U.S., at 163, 164. Furthermore, it is readily apparent that one reason for the recordkeeping requirement, namely, to assure that all abortions in Missouri are performed in accordance with the Act, fades somewhat into insignificance in view of our holding above as to spousal and parental consent requirements. Recordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible. This surely is so for the period after the first stage of pregnancy, for then the State may enact substantive as well as recordkeeping regulations that are reasonable means of protecting maternal health. As to the first stage, one may argue forcefully, as the appellants do, that the State should not be able to impose any recordkeeping requirements that significantly differ from those imposed with respect to other, *81 and comparable, medical or surgical procedures. We conclude, however, that the provisions of \u00a7\u00a7 10 and 11, while perhaps approaching impermissible limits, are not constitutionally offensive in themselves. Recordkeeping of this kind, if not abused or overdone, can be useful to the State's interest in protecting the health of its female citizens, and may be a resource that is relevant to decisions involving medical experience and judgment.[13] The added requirements for confidentiality, with the sole exception for public health officers, and for retention for seven years, a period not unreasonable in length, assist and persuade us in our determination of the constitutional limits. As so regarded, we see no legally significant impact or consequence on the abortion decision or on the physician-patient relationship. We naturally assume, furthermore, that these recordkeeping and record-maintaining provisions will be interpreted and enforced by Missouri's Division of Health in the light of our decision with respect to the Act's other provisions, and that, of course, they will not be utilized in such a way as to accomplish, through the sheer burden of recordkeeping detail, what we have held to be an otherwise unconstitutional restriction. Obviously, the State may not require execution of spousal and parental consent forms that have been invalidated today.\nG Standard of care. Appellee Danforth in No. 74-1419 appeals from the unanimous decision of the District *82 Court that \u00a7 6 (1) of the Act is unconstitutional. That section provides: \"No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter. . . . Further, such physician or other person shall be liable in an action for damages.\" The District Court held that the first sentence was unconstitutionally overbroad because it failed to exclude from its reach the stage of pregnancy prior to viability. 392 F. Supp., at 1371. The Attorney General argues that the District Court's interpretation is erroneous and unnecessary. He claims that the first sentence of \u00a7 6 (1) establishes only the general standard of care that applies to the person who performs the abortion, and that the second sentence describes the circumstances when that standard of care applies, namely, when a live child results from the procedure. Thus, the first sentence, it is said, despite its reference to the fetus, has no application until a live birth results. The appellants, of course, agree with the District Court. They take the position that \u00a7 6 (1) imposes its standard of care upon the person performing the abortion even though the procedure takes place before viability. They argue that the statute on its face effectively precludes abortion and was meant to do just that. *83 We see nothing that requires federal-court abstention on this issue. Wisconsin v. Constantineau, 400 U.S. 433, 437-439 (1971); Kusper v. Pontikes, 414 U.S. 51, 54-55 (1973). And, like the three judges of the District Court, we are unable to accept the appellee's sophisticated interpretation of the statute. Section 6 (1) requires the physician to exercise the prescribed skill, care, and diligence to preserve the life and health of the fetus. It does not specify that such care need be taken only after the stage of viability has been reached. As the provision now reads, it impermissibly requires the physician to preserve the life and health of the fetus, whatever the stage of pregnancy. The fact that the second sentence of \u00a7 6 (1) refers to a criminal penalty where the physician fails \"to take such measures to encourage or to sustain the life of the child, and the death of the child results\" (emphasis supplied), simply does not modify the duty imposed by the previous sentence or limit that duty to pregnancies that have reached the stage of viability. The appellees finally argue that if the first sentence of \u00a7 6 (1) does not survive constitutional attack, the second sentence does, and, under the Act's severability provision, \u00a7 B, is severable from the first. The District Court's ruling of unconstitutionality, 392 F. Supp., at 1371, made specific reference to the first sentence, but its conclusion of law and its judgment invalidated all of \u00a7 6 (1). Id., at 1374; Jurisdictional Statement A-34 in No. 74-1419. Appellee Danforth's motion to alter or amend the judgment, so far as the second sentence of \u00a7 6 (1) was concerned, was denied by the District Court. Id., at A-39. We conclude, as did the District Court, that \u00a7 6 (1) must stand or fall as a unit. Its provisions are inextricably bound together. And a physician's or other person's criminal failure to protect a liveborn infant surely *84 will be subject to prosecution in Missouri under the State's criminal statutes. The judgment of the District Court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.\nAPPENDIX TO OPINION OF THE COURT H. C. S. HOUSE BILL NO. 1211 AN ACT relating to abortion with penalty provisions and emergency clause. Be it enacted by the General Assembly of the State of Missouri, as follows: Section 1. It is the intention of the general assembly of the state of Missouri to reasonably regulate abortion in conformance with the decisions of the supreme court of the United States. Section 2. Unless the language or context clearly indicates a different meaning is intended, the following words or phrases for the purpose of this act shall be given the meaning ascribed to them: (1) \"Abortion,\" the intentional destruction of the life of an embryo or fetus in his or her mother's womb or the intentional termination of the pregnancy of a mother with an intention other than to increase the probability of a live birth or to remove a dead or dying unborn child; (2) \"Viability,\" that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems; (3) \"Physician,\" any person licensed to practice medicine *85 in this state by the state board of registration of the healing arts. Section 3. No abortion shall be performed prior to the end of the first twelve weeks of pregnancy except: (1) By a duly licensed, consenting physician in the exercise of his best clinical medical judgment. (2) After the woman, prior to submitting to the abortion, certifies in writing her consent to the abortion and that her consent is informed and freely given and is not the result of coercion. (3) With the written consent of the woman's spouse, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother. (4) With the written consent of one parent or person in loco parentis of the woman if the woman is unmarried and under the age of eighteen years, unless the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother. Section 4. No abortion performed subsequent to the first twelve weeks of pregnancy shall be performed except where the provisions of section 3 of this act are satisfied and in a hospital. Section 5. No abortion not necessary to preserve the life or health of the mother shall be performed unless the attending physician first certifies with reasonable medical certainty that the fetus is not viable. Section 6. (1) No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who *86 shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter and upon conviction shall be punished as provided in Section 559.140, RSMo. Further, such physician or other person shall be liable in an action for damages as provided in Section 537.080, RSMo. (2) Whoever, with intent to do so, shall take the life of a premature infant aborted alive, shall be guilty of murder of the second degree. (3) No person shall use any fetus or premature infant aborted alive for any type of scientific, research, laboratory or other kind of experimentation either prior to or subsequent to any abortion procedure except as necessary to protect or preserve the life and health of such premature infant aborted alive. Section 7. In every case where a live born infant results from an attempted abortion which was not performed to save the life or health of the mother, such infant shall be an abandoned ward of the state under the jurisdiction of the juvenile court wherein the abortion occurred, and the mother and father, if he consented to the abortion, of such infant, shall have no parental rights or obligations whatsoever relating to such infant, as if the parental rights had been terminated pursuant to section 211.411, RSMo. The attending physician shall forthwith notify said juvenile court of the existence of such live born infant. Section 8. Any woman seeking an abortion in the state of Missouri shall be verbally informed of the provisions of section 7 of this act by the attending physician and the woman shall certify in writing that she has been so informed. Section 9. The general assembly finds that the method or technique of abortion known as saline amniocentesis *87 whereby the amniotic fluid is withdrawn and a saline or other fluid is inserted into the amniotic sac for the purpose of killing the fetus and artificially inducing labor is deleterious to maternal health and is hereby prohibited after the first twelve weeks of pregnancy. Section 10. 1. Every health facility and physician shall be supplied with forms promulgated by the division of health, the purpose and function of which shall be the preservation of maternal health and life by adding to the sum of medical knowledge through the compilation of relevant maternal health and life data and to monitor all abortions performed to assure that they are done only under and in accordance with the provisions of the law. 2. The forms shall be provided by the state division of health. 3. All information obtained by physician, hospital, clinic or other health facility from a patient for the purpose of preparing reports to the division of health under this section or reports received by the division of health shall be confidential and shall be used only for statistical purposes. Such records, however, may be inspected and health data acquired by local, state, or national public health officers. Section 11. All medical records and other documents required to be kept shall be maintained in the permanent files of the health facility in which the abortion was performed for a period of seven years. Section 12. Any practitioner of medicine, surgery, or nursing, or other health personnel who shall willfully and knowingly do or assist any action made unlawful by this act shall be subject to having his license, application for license, or authority to practice his profession as a physician, surgeon, or nurse in the state of Missouri *88 rejected or revoked by the appropriate state licensing board. Section 13. Any physician or other person who fails to maintain the confidentiality of any records or reports required under this act is guilty of a misdemeanor and, upon conviction, shall be punished as provided by law. Section 14. Any person who contrary to the provisions of this act knowingly performs or aids in the performance of any abortion or knowingly fails to perform any action required by this act shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided by law. Section 15. Any person who is not a licensed physician as defined in section 2 of this act who performs or attempts to perform an abortion on another as defined in subdivision (1) of section 2 of this act, is guilty of a felony, and upon conviction, shall be imprisoned by the department of corrections for a term of not less than two years nor more than seventeen years. Section 16. Nothing in this act shall be construed to exempt any person, firm, or corporation from civil liability for medical malpractice for negligent acts or certification under this act. Section A. Because of the necessity for immediate state action to regulate abortions to protect the lives and health of citizens of this state, this act is deemed necessary for the immediate preservation of the public health, welfare, peace and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and this act shall be in full force and effect upon its passage and approval. Section B. If any provision of this Act or the application thereof to any person or circumstance shall be *89 held invalid, such invalidity does not affect the provisions or application of this Act which can be given effect without the invalid provisions or applications, and to this end the provisions of this Act are declared to be severable. Approved June 14, 1974. Effective June 14, 1974. MR. JUSTICE STEWART, with whom MR. JUSTICE POWELL joins, concurring. While joining the Court's opinion, I write separately to indicate my understanding of some of the constitutional issues raised by this litigation. With respect to the definition of viability in \u00a7 2 (2) of the Act, it seems to me that the critical consideration is that the statutory definition has almost no operative significance. The State has merely required physicians performing abortions to certify that the fetus to be aborted is not viable. While the physician may be punished for failing to issue a certification, he may not be punished for erroneously concluding that the fetus is not viable. There is thus little chance that a physician's professional decision to perform an abortion will be \"chilled.\" I agree with the Court that the patient-consent provision in \u00a7 3 (2) is constitutional. While \u00a7 3 (2) obviously regulates the abortion decision during all stages of pregnancy, including the first trimester, I do not believe it conflicts with the statement in Roe v. Wade, 410 U.S. 113, 163, that \"for the period of pregnancy prior to [approximately the end of the first trimester] the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment *90 may be effectuated by an abortion free of interference by the State.\" That statement was made in the context of invalidating a state law aimed at thwarting a woman's decision to have an abortion. It was not intended to preclude the State from enacting a provision aimed at ensuring that the abortion decision is made in a knowing, intelligent, and voluntary fashion. As to the provision of the law that requires a husband's consent to an abortion, \u00a7 3 (3), the primary issue that it raises is whether the State may constitutionally recognize and give effect to a right on his part to participate in the decision to abort a jointly conceived child. This seems to me a rather more difficult problem than the Court acknowledges. Previous decisions have recognized that a man's right to father children and enjoy the association of his offspring is a constitutionally protected freedom. See Stanley v. Illinois, 405 U.S. 645; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535. But the Court has recognized as well that the Constitution protects \"a woman's decision whether or not to terminate her pregnancy.\" Roe v. Wade, supra, at 153 (emphasis added). In assessing the constitutional validity of \u00a7 3 (3) we are called upon to choose between these competing rights. I agree with the Court that since \"it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy. . . the balance weighs in her favor.\" Ante, at 71. With respect to the state law's requirement of parental consent, \u00a7 3 (4), I think it clear that its primary constitutional deficiency lies in its imposition of an absolute limitation on the minor's right to obtain an abortion. The Court's opinion today in Bellotti v. Baird, post, at 147-148, suggests that a materially different constitutional issue would be presented under a provision requiring parental consent or consultation in most cases *91 but providing for prompt (i) judicial resolution of any disagreement between the parent and the minor, or (ii) judicial determination that the minor is mature enough to give an informed consent without parental concurrence or that abortion in any event is in the minor's best interest. Such a provision would not impose parental approval as an absolute condition upon the minor's right but would assure in most instances consultation between the parent and child.[1] There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.[2] *92 As to the constitutional validity of \u00a7 9 of the Act, prohibiting the use of the saline amniocentesis procedure, I agree fully with the views expressed by MR. JUSTICE STEVENS. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in part and dissenting in part. In Roe v. Wade, 410 U.S. 113 (1973), this Court recognized a right to an abortion free from state prohibition. The task of policing this limitation on state police power is and will be a difficult and continuing venture in substantive due process. However, even accepting Roe v. Wade, there is nothing in the opinion in that case and nothing articulated in the Court's opinion in this case which justifies the invalidation of four provisions of House Committee Substitute for House Bill No. 1211 (hereafter Act) enacted by the Missouri 77th General Assembly in 1974 in response to Roe v. Wade. Accordingly, I dissent, in part.\nI Roe v. Wade, supra, at 163, holds that until a fetus becomes viable, the interest of the State in the life or potential life it represents is outweighed by the interest of the mother in choosing \"whether or not to terminate her pregnancy.\" 410 U.S., at 153. Section 3 (3) of the Act provides that a married woman may not obtain an abortion without her husband's consent. The Court strikes down this statute in one sentence. It says that \"since the State cannot . . . proscribe abortion . . . the State cannot delegate authority to any particular person, *93 even the spouse, to prevent abortion . . . .\" Ante, at 69. But the State is not\u2014under \u00a7 3 (3)\u2014delegating to the husband the power to vindicate the State's interest in the future life of the fetus. It is instead recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife.[1] It by no means follows, from the fact that the mother's interest in deciding \"whether or not to terminate her pregnancy\" outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed and may not be protected by the State. A father's interest in having a child\u2014perhaps his only child\u2014may be unmatched by any other interest in his life. See Stanley v. Illinois, 405 U.S. 645, 651 (1972), and cases there cited. It is truly surprising that the majority finds in the United States Constitution, as it must in order to justify the result it reaches, a rule that the State must assign a greater value to a mother's decision to cut off a potential human life by abortion than to a father's decision to let it mature into a live child. Such a rule cannot be found there, nor can it be found in Roe v. Wade, supra. These are matters which a State should be able to decide free from the suffocating power of the federal judge, purporting to act in the name of the Constitution. *94 In describing the nature of a mother's interest in termininating a pregnancy, the Court in Roe v. Wade mentioned only the post-birth burdens of rearing a child, 410 U.S., at 153, and rejected a rule based on her interest in controlling her own body during pregnancy. Id., at 154. Missouri has a law which prevents a woman from putting a child up for adoption over her husband's objection, Mo. Rev. Stat. \u00a7 453.030 (1969). This law represents a judgment by the State that the mother's interest in avoiding the burdens of child rearing do not outweigh or snuff out the father's interest in participating in bringing up his own child. That law is plainly valid, but no more so than \u00a7 3 (3) of the Act now before us, resting as it does on precisely the same judgment.\nII Section 3 (4) requires that an unmarried woman under 18 years of age obtain the consent of a parent or a person in loco parentis as a condition to an abortion. Once again the Court strikes the provision down in a sentence. It states: \"Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy. . . .\" Ante, at 74. The Court rejects the notions that the State has an interest in strengthening the family unit, or that the parent has an \"independent interest\" in the abortion decision, sufficient to justify \u00a7 3 (4) and apparently concludes that the provision is therefore unconstitutional. But the purpose of the parental-consent requirement is not merely to vindicate any interest of the parent or of the State. The purpose of the requirement is to vindicate the very right created in Roe v. Wade, supra\u2014the right of the pregnant woman to decide *95 \"whether or not to terminate her pregnancy.\" 410 U.S., at 153 (emphasis added). The abortion decision is unquestionably important and has irrevocable consequences whichever way it is made. Missouri is entitled to protect the minor unmarried woman from making the decision in a way which is not in her own best interests, and it seeks to achieve this goal by requiring parental consultation and consent. This is the traditional way by which States have sought to protect children from their own immature and improvident decisions;[2] and there is absolutely no reason expressed by the majority why the State may not utilize that method here.\nIII Section 9 of the Act prohibits abortion by the method known as saline amniocentesis\u2014a method used at the time the Act was passed for 70% of abortions performed after the first trimester. Legislative history reveals that the Missouri Legislature viewed saline amniocentesis as far less safe a method of abortion than the so-called prostaglandin method. The court below took evidence on the question and summarized it as follows: \"The record of trial discloses that use of the saline method exposes a woman to the danger of severe complications, regardless of the skill of the physician or the precaution taken. Saline may cause one or *96 more of the following conditions: Disseminated intravascular coagulation or `consumptive coagulapathy' (disruption of the blood clotting mechanism [Dr. Warren, Tr. 57-58; Dr. Klaus, Tr. 269-270; Dr. Anderson, Tr. 307; Defts' Exs. H & M]), which may result in severe bleeding and possibly death (Dr. Warren, Tr. 58); hypernatremia (increase in blood sodium level), which may lead to convulsions and death (Dr. Klaus, Tr. 268); and water intoxication (accumulated water in the body tissue which may occur when oxytoxin is used in conjunction with the injection of saline), resulting in damage to the central nervous system or death (Dr. Warren, Tr. 76; Dr. Klaus, Tr. 270-271; Dr. Anderson, Tr. 310; Defts' Ex. L). There is also evidence that saline amniocentesis causes massive tissue destruction to the inside of the uterus (Dr. Anderson, Tr. 308).\" 392 F. Supp. 1362, 1372-1373 (1975). The District Court also cited considerable evidence establishing that the prostaglandin method is safer. In fact, the Chief of Obstetrics at Yale University, Dr. Anderson, suggested that \"physicians should be liable for malpractice if they chose saline over prostaglandin after having been given all the facts on both methods.\" Id., at 1373. The Court nevertheless reverses the decision of the District Court sustaining \u00a7 9 against constitutional challenge. It does so apparently because saline amniocentesis was widely used before the Act was passed; because the prostaglandin method was seldom used and was not generally available; and because other abortion techniques more dangerous than saline amniocentesis were not banned. At bottom the majority's holding\u2014as well as the concurrence\u2014rests on its factual finding that the prostaglandin method is unavailable to the women of *97 Missouri. It therefore concludes that the ban on the saline method is \"an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks,\" ante, at 79. This factual finding was not made either by the majority or by the dissenting judge below. Appellants have not argued that the record below supports such a finding. In fact the record below does not support such a finding. There is no evidence in the record that women in Missouri will be unable to obtain abortions by the prostaglandin method. What evidence there is in the record on this question supports the contrary conclusion.[3] The record discloses that the prostaglandin method of abortion was the country's second most common method of abortion during the second trimester, Tr. 42, 89-90; that although the prostaglandin method had previously been available only on an experimental basis, it was, at the time of trial available in \"small hospitals all over the country,\" id., at 342; that in another year or so the prostaglandin method would become \u2014even in the absence of legislation on the subject\u2014 the most prevalent method. Anderson deposition, at 69. Moreover, one doctor quite sensibly testified that if the saline method were banned, hospitals would quickly switch to the prostaglandin method. The majority relies on the testimony of one doctor that\u2014as already noted\u2014prostaglandin had been available on an experimental basis only until January 1, 1974; and that its manufacturer, the Upjohn Co., restricted its sales to large medical centers for the following six months, after which sales were to be unrestricted. Tr. *98 334-335. In what manner this evidence supports the proposition that prostaglandin is unavailable to the women of Missouri escapes me. The statute involved in this litigation was passed on June 14, 1974; evidence was taken in July 1974; the District Court's decree sustaining the ban on the saline method which this Court overturns was entered in January 1975; and this Court declares the statute unconstitutional in July 1976. There is simply no evidence in the record that prostaglandin was or is unavailable at any time relevant to this case. Without such evidence and without any factual finding by the court below this Court cannot properly strike down a statute passed by one of the States. Of course, there is no burden on a State to establish the constitutionality of one of its laws. Absent proof of a fact essential to its unconstitutionality, the statute remains in effect. The only other basis for its factual finding which the majority offers is a citation to another case\u2014Wolfe v. Schroering, 388 F. Supp. 631, 637 (WD Ky. 1974)\u2014in which a different court concluded that the record in its case showed the prostaglandin method to be unavailable in another State\u2014Kentucky\u2014at another time\u2014two years ago. This case must be decided on its own record. I am not yet prepared to accept the notion that normal rules of law, procedure, and constitutional adjudication suddenly become irrelevant solely because a case touches on the subject of abortion. The majority's finding of fact that women in Missouri will be unable to obtain abortions after the first trimester if the saline method is banned is wholly unjustifiable. In any event, the point of \u00a7 9 is to change the practice under which most abortions were performed under the saline amniocentesis method and to make the safer prostaglandin method generally available. It promises to *99 achieve that result, if it remains operative, and the evidence discloses that the result is a desirable one or at least that the legislature could have so viewed it. That should end our inquiry, unless we purport to be not only the country's continuous constitutional convention but also its ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.\nIV Section 6 (1) of the Act provides: \"No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter. . . . Further, such physician or other person shall be liable in an action for damages.\" If this section is read in any way other than through a microscope, it is plainly intended to require that, where a \"fetus [may have] the capability of meaningful life outside the mother's womb,\" Roe v. Wade, 410 U. S., at 163, the abortion be handled in a way which is designed to preserve that life notwithstanding the mother's desire to terminate it. Indeed, even looked at through a microscope the statute seems to go no further. It requires a physician to exercise \"that degree of professional skill . . . to preserve the . . . fetus,\" which he would be required to exercise if the mother wanted a live child. Plainly, *100 if the pregnancy is to be terminated at a time when there is no chance of life outside the womb, a physician would not be required to exercise any care or skill to preserve the life of the fetus during abortion no matter what the mother's desires. The statute would appear then to operate only in the gray area after the fetus might be viable but while the physician is still able to certify \"with reasonable medical certainty that the fetus is not viable.\" See \u00a7 5 of the Act which flatly prohibits abortions absent such a certification. Since the State has a compelling interest, sufficient to outweigh the mother's desire to kill the fetus, when the \"fetus . . . has the capability of meaningful life outside the mother's womb,\" Roe v. Wade, supra, at 163, the statute is constitutional. Incredibly, the Court reads the statute instead to require \"the physician to preserve the life and health of the fetus, whatever the stage of pregnancy,\" ante, at 83, thereby attributing to the Missouri Legislature the strange intention of passing a statute with absolutely no chance of surviving constitutional challenge under Roe v. Wade, supra. The Court compounds its error by also striking down as unseverable the wholly unobjectionable requirement in the second sentence of \u00a7 6 (1) that where an abortion produces a live child, steps must be taken to sustain its life. It explains its result in two sentences: \"We conclude, as did the District Court, that \u00a7 6 (1) must stand or fall as a unit. Its provisions are inextricably bound together.\" Ante, at 83. The question whether a constitutional provision of state law is severable from an unconstitutional provision is entirely a question of the intent of the state legislature. There is not the slightest reason to suppose that the Missouri Legislature would not require proper care *101 for live babies just because it cannot require physicians performing abortions to take care to preserve the life of fetuses. The Attorney General of Missouri has argued here that the only intent of \u00a7 6 (1) was to require physicians to support a live baby which resulted from an abortion. At worst, \u00a7 6 (1) is ambiguous on both points and the District Court should be directed to abstain until a construction may be had from the state courts. Under no circumstances should \u00a7 6 (1) be declared unconstitutional at this point.[4] V I join the judgment and opinion of the Court insofar as it upholds the other portions of the Act against constitutional challenge. MR. JUSTICE STEVENS, concurring in part and dissenting in part. With the exception of Parts IV-D and IV-E, I join the Court's opinion. In Roe v. Wade, 410 U.S. 113, the Court held that a woman's right to decide whether to abort a pregnancy is entitled to constitutional protection. That decision, which is now part of our law, answers the question discussed in Part IV-E of the Court's opinion, but merely poses the question decided in Part IV-D. If two abortion procedures had been equally accessible to Missouri women, in my judgment the United States Constitution would not prevent the state legislature *102 from outlawing the one it found to be less safe even though its conclusion might not reflect a unanimous consensus of informed medical opinion. However, the record indicates that when the Missouri statute was enacted, a prohibition of the saline amniocentesis procedure was almost tantamount to a prohibition of any abortion in the State after the first 12 weeks of pregnancy. Such a prohibition is inconsistent with the essential holding of Roe v. Wade and therefore cannot stand. In my opinion, however, the parental-consent requirement is consistent with the holding in Roe. The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant. The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible. Therefore, the holding in Roe v. Wade that the abortion decision is entitled to constitutional protection merely emphasizes the importance of the decision; it does not lead to the conclusion that the state legislature has no power to enact legislation for the purpose of protecting a young pregnant woman from the consequences of an incorrect decision. The abortion decision is, of course, more important than the decision to attend or to avoid an adult motion picture, or the decision to work long hours in a *103 factory. It is not necessarily any more important than the decision to run away from home or the decision to marry. But even if it is the most important kind of a decision a young person may ever make, that assumption merely enhances the quality of the State's interest in maximizing the probability that the decision be made correctly and with full understanding of the consequences of either alternative. The Court recognizes that the State may insist that the decision not be made without the benefit of medical advice. But since the most significant consequences of the decision are not medical in character, it would seem to me that the State may, with equal legitimacy, insist that the decision be made only after other appropriate counsel has been had as well. Whatever choice a pregnant young woman makes\u2014to marry, to abort, to bear her child out of wedlock\u2014the consequences of her decision may have a profound impact on her entire future life. A legislative determination that such a choice will be made more wisely in most cases if the advice and moral support of a parent play a part in the decisionmaking process is surely not irrational. Moreover, it is perfectly clear that the parental-consent requirement will necessarily involve a parent in the decisional process. If there is no parental-consent requirement, many minors will submit to the abortion procedure without ever informing their parents. An assumption that the parental reaction will be hostile, disparaging, or violent no doubt persuades many children simply to bypass parental counsel which would in fact be loving, supportive, and, indeed, for some indispensable. It is unrealistic, in my judgment, to assume that every parent-child relationship is either (a) so perfect that communication and accord will take place routinely or *104 (b) so imperfect that the absence of communication reflects the child's correct prediction that the parent will exercise his or her veto arbitrarily to further a selfish interest rather than the child's interest. A state legislature may conclude that most parents will be primarily interested in the welfare of their children, and further, that the imposition of a parental-consent requirement is an appropriate method of giving the parents an opportunity to foster that welfare by helping a pregnant distressed child to make and to implement a correct decision. The State's interest is not dependent on an estimate of the impact the parental-consent requirement may have on the total number of abortions that may take place. I assume that parents will sometimes prevent abortions which might better be performed; other parents may advise abortions that should not be performed. Similarly, even doctors are not omniscient; specialists in performing abortions may incorrectly conclude that the immediate advantages of the procedure outweigh the disadvantages which a parent could evaluate in better perspective. In each individual case factors much more profound than a mere medical judgment may weigh heavily in the scales. The overriding consideration is that the right to make the choice be exercised as wisely as possible. The Court assumes that parental consent is an appropriate requirement if the minor is not capable of understanding the procedure and of appreciating its consequences and those of available alternatives. This assumption is, of course, correct and consistent with the predicate which underlies all state legislation seeking to protect minors from the consequences of decisions they are not yet prepared to make. In all such situations chronological age has been the basis for imposition of a restraint on the minor's freedom of choice even though *105 it is perfectly obvious that such a yardstick is imprecise and perhaps even unjust in particular cases. The Court seems to assume that the capacity to conceive a child and the judgment of the physician are the only constitutionally permissible yardsticks for determining whether a young woman can independently make the abortion decision. I doubt the accuracy of the Court's empirical judgment. Even if it were correct, however, as a matter of constitutional law I think a State has power to conclude otherwise and to select a chronological age as its standard. In short, the State's interest in the welfare of its young citizens is sufficient, in my judgment, to support the parental-consent requirement. NOTES [*] Together with No. 74-1419, Danforth, Attorney General of Missouri v. Planned Parenthood of Central Missouri et al., also on appeal from the same court. [\u2020] Rhonda Copelon and Nancy Stearns filed a brief in both cases for the Center for Constitutional Rights et al. as amici curiae urging reversal in No. 74-1151.\nBriefs of amici curiae were filed in both cases by Eugene Krasicky, George E. Reed, and Patrick F. Geary for the United States Catholic Conference; and by Harriet F. Pilpel for Planned Parenthood Federation of America, Inc., et al. Briefs of amici curiae were filed in No. 74-1151 by John J. Donnelly for Lawyers for Life, Inc., et al., and by Jerome M. McLaughlin for Missouri Nurses for Life. [1] \"Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.\" Roe v. Wade, 410 U. S., at 160. [2] This is not so, however, with respect to \u00a7 7 of the Act pertaining to state wardship of a live-born infant. Section 7 applies \"where a live born infant results from an attempted abortion which was not performed to save the life or health of the mother.\" It then provides that the infant \"shall be an abandoned ward of the state\" and that the mother\u2014and the father, too, if he consented to the abortion\u2014\"shall have no parental rights or obligations whatsoever relating to such infant.\" The physician-appellants do not contend that this section of the Act imposes any obligation on them or that its operation otherwise injures them in fact. They do not claim any interest in the question of who receives custody that is \"sufficiently concrete\" to satisfy the \"case or controversy\" requirement of a federal court's Art. III jurisdiction. Singleton v. Wulff, post, at 112. Accordingly, the physician-appellants do not have standing to challenge \u00a7 7 of the Act. The District Court did not decide whether Planned Parenthood has standing to challenge the Act, or any portion of it, because of its view that the physician-appellants have standing to challenge the entire Act. 392 F. Supp. 1362, 1366-1367 (1975). We decline to consider here the standing of Planned Parenthood to attack \u00a7 7. That question appropriately may be left to the District Court for reconsideration on remand. As a consequence, we do not decide the issue of \u00a7 7's constitutionality. [3] \"[A]lthough I agree with the definition of `viability,' I think that it must be understood that viability is a very difficult state to assess.\" Tr. 369. [4] \"The determination of when the fetus is viable rests, as it should, with the physician, in the exercise of his medical judgment, on a case-by-case basis.\" Brief for Appellee Danforth 26. \"Because viability may vary from patient to patient and with advancements in medical technology, it is essential that physicians make the determination in the exercise of their medical judgment.\" Id., at 28. \"Defendant agrees that `viability' will vary, that it is a difficult state to assess . . . and that it must be left to the physician's judgment.\" Id., at 29. [5] The Minnesota statute under attack in Hodgson provided that a fetus \"shall be considered potentially `viable' \" during the second half of its gestation period. Noting that the defendants had presented no evidence of viability at 20 weeks, the three-judge District Court held that that definition of viability was \"unreasonable and cannot stand.\" 378 F. Supp., at 1016. [6] Apparently, however, the only other Missouri statutes concerned with consent for general medical or surgical care relate to persons committed to the Missouri State chest hospital, Mo. Rev. Stat. \u00a7 199.240 (Supp. 1975), or to mental or correctional institutions, \u00a7 105.700 (1969). [7] There is some testimony in the record to the effect that taking from the patient a prior written consent to surgery is the custom. That may be so in some areas of Missouri, but we definitely refrain from characterizing it extremely as \"the universal practice of the medical profession,\" as the appellees do. Brief for Appellee Danforth 32. [8] The appellants' vagueness argument centers on the word \"informed.\" One might well wonder, offhand, just what \"informed consent\" of a patient is. The three Missouri federal judges who composed the three-judge District Court, however, were not concerned, and we are content to accept, as the meaning, the giving of information to the patient as to just what would be done and as to its consequences. To ascribe more meaning than this might well confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession. [9] It is of some interest to note that the condition does not relate, as most statutory conditions in this area do, to the preservation of the life or health of the mother. [10] \"We deal with a right of privacy older than the Bill of Rights\u2014 older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.\" Griswold v. Connecticut, 381 U. S., at 486. [11] As the Court recognized in Eisenstadt v. Baird, \"the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.\" 405 U.S., at 453 (emphasis in original).\nThe dissenting opinion of our Brother WHITE appears to overlook the implications of this statement upon the issue whether \u00a7 3 (3) is constitutional. This section does much more than insure that the husband participate in the decision whether his wife should have an abortion. The State, instead, has determined that the husband's interest in continuing the pregnancy of his wife always outweighs any interest on her part in terminating it irrespective of the condition of their marriage. The State, accordingly, has granted him the right to prevent unilaterally, and for whatever reason, the effectuation of his wife's and her physician's decision to terminate her pregnancy. This state determination not only may discourage the consultation that might normally be expected to precede a major decision affecting the martial couple but also, and more importantly, the State has interposed an absolute obstacle to a woman's decision that Roe held to be constitutionally protected from such interference. [12] In response to MR. JUSTICE WHITE'S criticism that the prostaglandin method of inducing abortion was available in Missouri, either at the time the Act was passed or at the time of trial, we make the following observations. First, there is no evidence in the record to which our Brother has pointed that demonstrates that the prostaglandin method was or is available in Missouri. Second, the evidence presented to the District Court does not support such a view. Until January 1974 prostaglandin was used only on an experimental basis in a few medical centers. And, at the time the Missouri General Assembly proscribed saline, the sole distributor of prostaglandin \"restricted sales to around twenty medical centers from coast to coast.\" Brief for Appellee Danforth 68.\nIt is clear, therefore, that at the time the Missouri General Assembly passed the Act, prostaglandin was not available, in any meaningful sense of that term. Because of this undisputed fact, it was incumbent upon appellees to show that at the time of trial in 1974 prostaglandin was available. They failed to do so. Indeed, appellees' expert witness, on whose testimony the dissenting opinion relies, does not fill this void. He was able to state only that prostaglandin was used in a limited way until shortly before trial and that he \"would think\" that it was more readily available at the time of trial. Tr. 335. Such an experimental and limited use of prostaglandin throughout the country does not make it available or accessible to concerned persons in Missouri. [13] We note that in Missouri physicians must participate in the reporting of births and deaths, Mo. Rev. Stat. \u00a7\u00a7 193.100 and 193.140 (1969), and communicable diseases, \u00a7\u00a7 192.020 and 192.040 (1969), and that their use of controlled substances is rigidly monitored by the State, \u00a7\u00a7 195.010-195.545 (1969 and Supp. 1975). [1] For some of the considerations that support the State's interest in encouraging parental consent, see the opinion of MR. JUSTICE STEVENS, concurring in part and dissenting in part. Post, at 102-105. [2] The mode of operation of one such clinic is revealed by the record in Bellotti v. Baird, post, p. 132, and accurately described by appellants in that case: \"The counseling . . . occurs entirely on the day the abortion is to be performed . . . . It lasts for two hours and takes place in groups that include both minors and adults who are strangers to one another . . . . The physician takes no part in this counseling process . . . . Counseling is typically limited to a description of abortion procedures, possible complications, and birth control techniques . . . . \"The abortion itself takes five to seven minutes . . . . The physician has no prior contact with the minor, and on the days that abortions are being performed at the [clinic], the physician, . . . may be performing abortions on many other adults and minors . . . . On busy days patients are scheduled in separate groups, consisting usually of five patients . . . . After the abortion [the physician] spends a brief period with the minor and others in the group in the recovery room . . . .\" Brief for Appellants in No. 75-73, O. T. 1975, pp. 43-44. [1] There are countless situations in which the State prohibits conduct only when it is objected to by a private person most closely affected by it. Thus a State cannot forbid anyone to enter on private property with the owner's consent, but it may enact and enforce trespass laws against unauthorized entrances. It cannot forbid transfer of property held in tenancy by the entireties but it may require consent by both husband and wife to such a transfer. These situations plainly do not involve delegations of legislative power to private parties; and neither does the requirement in \u00a7 3 (3) that a woman not deprive her husband of his future child without his consent. [2] As MR. JUSTICE STEVENS states in his separate opinion, post, at 102: \"The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant.\" [3] The absence of more evidence on the subject in the record seems to be a result of the fact that the claim that the prostaglandin method is unavailable was not part of plaintiffs' litigating strategy below. [4] The majority's construction of state law is, of course, not binding on the Missouri courts. If they should disagree with the majority's reading of state law on one or both of the points treated by the majority, the State could validly enforce the relevant parts of the statute\u2014at least against all those people not parties to this case. Cf. Dombrowski v. Pfister, 380 U.S. 479, 492 (1965).","meta":{"dup_signals":{"dup_doc_count":1834,"dup_dump_count":91,"dup_details":{"2024-22":2,"2024-18":2,"2024-10":1,"2017-13":3,"2015-18":70,"2015-11":72,"2015-06":76,"2014-10":47,"2013-48":54,"2013-20":35,"2023-50":1,"2023-40":2,"2023-14":2,"2023-06":2,"2022-49":1,"2022-40":1,"2022-27":4,"2022-21":1,"2022-05":5,"2021-49":2,"2021-39":1,"2021-25":1,"2021-21":3,"2021-17":2,"2021-10":3,"2021-04":5,"2020-45":6,"2020-40":1,"2020-34":3,"2020-29":1,"2020-24":1,"2020-16":3,"2020-10":4,"2020-05":4,"2019-51":4,"2019-47":3,"2019-43":2,"2019-35":4,"2019-30":2,"2019-26":3,"2019-22":3,"2019-18":4,"2019-13":3,"2019-09":3,"2019-04":1,"2018-51":2,"2018-47":2,"2018-43":6,"2018-39":2,"2018-34":3,"2018-30":1,"2018-26":2,"2018-22":2,"2018-17":5,"2018-13":2,"2018-09":6,"2018-05":3,"2017-51":1,"2017-47":4,"2017-43":10,"2017-39":11,"2017-34":2,"2017-30":7,"2017-26":3,"2017-22":19,"2017-17":7,"2017-09":55,"2017-04":9,"2016-50":8,"2016-44":26,"2016-40":26,"2016-36":26,"2016-30":25,"2016-26":4,"2016-22":5,"2016-18":4,"2016-07":62,"2015-48":60,"2015-40":47,"2015-35":54,"2015-32":56,"2015-27":55,"2015-22":24,"2015-14":68,"2014-52":68,"2014-49":92,"2014-42":123,"2014-41":91,"2014-35":91,"2014-23":100,"2014-15":102}}},"subset":"freelaw"}
{"text":"478 U.S. 30 (1986) THORNBURG, ATTORNEY GENERAL OF NORTH CAROLINA, ET AL. v. GINGLES ET AL. No. 83-1968. Supreme Court of United States. Argued December 4, 1985 Decided June 30, 1986 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA *33 Lacy H. Thornburg, Attorney General of North Carolina, pro se, argued the cause for appellants. With him on the briefs were Jerris Leonard, Kathleen Heenan McGuan, James Wallace, Jr., Deputy Attorney General for Legal Affairs, and Tiare B. Smiley and Norma S. Harrell, Assistant Attorneys General. Solicitor General Fried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Reynolds and Deputy Assistant Attorney General Cooper. Julius LeVonne Chambers argued the cause for appellees. With him on the briefs for appellees Gingles et al. were Eric Schnapper, C. Lani Guinier, and Leslie J. Winner. C. Allen Foster, Kenneth J. Gumbiner, Robert N. *34 Hunter, Jr., and Arthur J. Donaldson filed briefs for appellees Eaglin et al.[*] Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation, Inc., et al. by Cynthia Hill, Maureen T. Thornton, Laughlin McDonald, and Neil Bradley; for Common Cause by William T. Lake; for the Lawyer's Committee for Civil Rights Under Law et al. by James Robertson, Harold R. Tyler, Jr., Norman Redlich, William L. Robinson, Frank R. Parker, Samuel Rabinove, and Richard T. Foltin; for James G. Martin, Governor of North Carolina, by Victor S. Friedman; for Legal Services of North Carolina by David H. Harris, Jr., Susan M. Perry, Richard Taylor, and Julian Pierce; for the Republican National Committee by Roger Allan Moore and Michael A. Hess; and for Senator Dennis DeConcini et al. by Walter J. Rockler. JUSTICE BRENNAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, an opinion with respect to Part III-C, in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, and an opinion with respect to Part IV-B, in which JUSTICE WHITE joins. This case requires that we construe for the first time \u017e 2 of the Voting Rights Act of 1965, as amended June 29, 1982. 42 U.S. C. \u017e 1973. The specific question to be decided is whether the three-judge District Court, convened in the Eastern District of North Carolina pursuant to 28 U.S. C. \u017e 2284(a) and 42 U.S. C. \u017e 1973c, correctly held that the use in a legislative redistricting plan of multimember districts in five North Carolina legislative districts violated \u017e 2 by impairing the opportunity of black voters \"to participate in the political process and to elect representatives of their choice.\" \u017e 2(b), 96 Stat. 134.\nI BACKGROUND In April 1982, the North Carolina General Assembly enacted a legislative redistricting plan for the State's Senate *35 and House of Representatives. Appellees, black citizens of North Carolina who are registered to vote, challenged seven districts, one single-member[1] and six multimember[2] districts, alleging that the redistricting scheme impaired black citizens' ability to elect representatives of their choice in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution and of \u017e 2 of the Voting Rights Act.[3] After appellees brought suit, but before trial, Congress amended \u017e 2. The amendment was largely a response to this Court's plurality opinion in Mobile v. Bolden, 446 U.S. 55 (1980), which had declared that, in order to establish a violation either of \u017e 2 or of the Fourteenth or Fifteenth Amendments, minority voters must prove that a contested electoral mechanism was intentionally adopted or maintained by state officials for a discriminatory purpose. Congress substantially revised \u017e 2 to make clear that a violation could be proved by showing discriminatory effect alone and to establish as the relevant legal standard the \"results test,\" applied by this Court in White v. Regester, 412 U.S. 755 (1973), and by other federal courts before Bolden, supra. S. Rep. No. 97-417, p. 28 (1982) (hereinafter S. Rep.). *36 Section 2, as amended, 96 Stat. 134, reads as follows: \"(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b). \"(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.\" Codified at 42 U.S. C. \u017e 1973. The Senate Judiciary Committee majority Report accompanying the bill that amended \u017e 2 elaborates on the circumstances that might be probative of a \u017e 2 violation, noting the following \"typical factors\":[4] \"1. the extent of any history of official discrimination in the state or political subdivision that touched the right of *37 the members of the minority group to register, to vote, or otherwise to participate in the democratic process; \"2. the extent to which voting in the elections of the state or political subdivision is racially polarized; \"3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; \"4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; \"5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; \"6. whether political campaigns have been characterized by overt or subtle racial appeals; \"7. the extent to which members of the minority group have been elected to public office in the jurisdiction. \"Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are: \"whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group. \"whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.\" S. Rep., at 28-29. The District Court applied the \"totality of the circumstances\" test set forth in \u017e 2(b) to appellees' statutory claim, and, relying principally on the factors outlined in the Senate *38 Report, held that the redistricting scheme violated \u017e 2 because it resulted in the dilution of black citizens' votes in all seven disputed districts. In light of this conclusion, the court did not reach appellees' constitutional claims. Gingles v. Edmisten, 590 F. Supp. 345 (EDNC 1984). Preliminarily, the court found that black citizens constituted a distinct population and registered-voter minority in each challenged district. The court noted that at the time the multimember districts were created, there were concentrations of black citizens within the boundaries of each that were sufficiently large and contiguous to constitute effective voting majorities in single-member districts lying wholly within the boundaries of the multimember districts. With respect to the challenged single-member district, Senate District No. 2, the court also found that there existed a concentration of black citizens within its boundaries and within those of adjoining Senate District No. 6 that was sufficient in numbers and in contiguity to constitute an effective voting majority in a single-member district. The District Court then proceeded to find that the following circumstances combined with the multimember districting scheme to result in the dilution of black citizens' votes. First, the court found that North Carolina had officially discriminated against its black citizens with respect to their exercise of the voting franchise from approximately 1900 to 1970 by employing at different times a poll tax, a literacy test, a prohibition against bullet (single-shot) voting,[5]*39 and designated seat plans[6] for multimember districts. The court observed that even after the removal of direct barriers to black voter registration, such as the poll tax and literacy test, black voter registration remained relatively depressed; in 1982 only 52.7% of age-qualified blacks statewide were registered to vote, whereas 66.7% of whites were registered. The District Court found these statewide depressed levels of black voter registration to be present in all of the disputed districts and to be traceable, at least in part, to the historical pattern of statewide official discrimination. Second, the court found that historic discrimination in education, housing, employment, and health services had resulted in a lower socioeconomic status for North Carolina blacks as a group than for whites. The court concluded that this lower status both gives rise to special group interests and hinders blacks' ability to participate effectively in the political process and to elect representatives of their choice. Third, the court considered other voting procedures that may operate to lessen the opportunity of black voters to elect candidates of their choice. It noted that North Carolina has a majority vote requirement for primary elections and, while acknowledging that no black candidate for election to the State General Assembly had failed to win solely because of this requirement, the court concluded that it nonetheless presents a continuing practical impediment to the opportunity of black voting minorities to elect candidates of their choice. The court also remarked on the fact that North Carolina does not have a subdistrict residency requirement for members of the General Assembly elected from multimember *40 districts, a requirement which the court found could offset to some extent the disadvantages minority voters often experience in multimember districts. Fourth, the court found that white candidates in North Carolina have encouraged voting along color lines by appealing to racial prejudice. It noted that the record is replete with specific examples of racial appeals, ranging in style from overt and blatant to subtle and furtive, and in date from the 1890's to the 1984 campaign for a seat in the United States Senate. The court determined that the use of racial appeals in political campaigns in North Carolina persists to the present day and that its current effect is to lessen to some degree the opportunity of black citizens to participate effectively in the political processes and to elect candidates of their choice. Fifth, the court examined the extent to which blacks have been elected to office in North Carolina, both statewide and in the challenged districts. It found, among other things, that prior to World War II, only one black had been elected to public office in this century. While recognizing that \"it has now become possible for black citizens to be elected to office at all levels of state government in North Carolina,\" 590 F. Supp., at 367, the court found that, in comparison to white candidates running for the same office, black candidates are at a disadvantage in terms of relative probability of success. It also found that the overall rate of black electoral success has been minimal in relation to the percentage of blacks in the total state population. For example, the court noted, from 1971 to 1982 there were at any given time only two-to-four blacks in the 120-member House of Representatives \u00d4\u00c7\u00f6 that is, only 1.6% to 3.3% of House members were black. From 1975 to 1983 there were at any one time only one or two blacks in the 50-member State Senate \u00d4\u00c7\u00f6 that is, only 2% to 4% of State Senators were black. By contrast, at the time of the District Court's opinion, blacks constituted about 22.4% of the total state population. *41 With respect to the success in this century of black candidates in the contested districts, see also Appendix B to opinion, post, p. 82, the court found that only one black had been elected to House District 36 \u00d4\u00c7\u00f6 after this lawsuit began. Similarly, only one black had served in the Senate from District 22, from 1975-1980. Before the 1982 election, a black was elected only twice to the House from District 39 (part of Forsyth County); in the 1982 contest two blacks were elected. Since 1973 a black citizen had been elected each 2-year term to the House from District 23 (Durham County), but no black had been elected to the Senate from Durham County. In House District 21 (Wake County), a black had been elected twice to the House, and another black served two terms in the State Senate. No black had ever been elected to the House or Senate from the area covered by House District No. 8, and no black person had ever been elected to the Senate from the area covered by Senate District No. 2. The court did acknowledge the improved success of black candidates in the 1982 elections, in which 11 blacks were elected to the State House of Representatives, including 5 blacks from the multimember districts at issue here. However, the court pointed out that the 1982 election was conducted after the commencement of this litigation. The court found the circumstances of the 1982 election sufficiently aberrational and the success by black candidates too minimal and too recent in relation to the long history of complete denial of elective opportunities to support the conclusion that black voters' opportunities to elect representatives of their choice were not impaired. Finally, the court considered the extent to which voting in the challenged districts was racially polarized. Based on statistical evidence presented by expert witnesses, supplemented to some degree by the testimony of lay witnesses, the court found that all of the challenged districts exhibit severe and persistent racially polarized voting. *42 Based on these findings, the court declared the contested portions of the 1982 redistricting plan violative of \u017e 2 and enjoined appellants from conducting elections pursuant to those portions of the plan. Appellants, the Attorney General of North Carolina and others, took a direct appeal to this Court, pursuant to 28 U.S. C. \u017e 1253, with respect to five of the multimember districts \u00d4\u00c7\u00f6 House Districts 21, 23, 36, and 39, and Senate District 22. Appellants argue, first, that the District Court utilized a legally incorrect standard in determining whether the contested districts exhibit racial bloc voting to an extent that is cognizable under \u017e 2. Second, they contend that the court used an incorrect definition of racially polarized voting and thus erroneously relied on statistical evidence that was not probative of polarized voting. Third, they maintain that the court assigned the wrong weight to evidence of some black candidates' electoral success. Finally, they argue that the trial court erred in concluding that these multimember districts result in black citizens having less opportunity than their white counterparts to participate in the political process and to elect representatives of their choice. We noted probable jurisdiction, 471 U.S. 1064 (1985), and now affirm with respect to all of the districts except House District 23. With regard to District 23, the judgment of the District Court is reversed.\nII SECTION 2 AND VOTE DILUTION THROUGH USE OF MULTIMEMBER DISTRICTS An understanding both of \u017e 2 and of the way in which multimember districts can operate to impair blacks' ability to elect representatives of their choice is prerequisite to an evaluation of appellants' contentions. First, then, we review amended \u017e 2 and its legislative history in some detail. Second, we explain the theoretical basis for appellees' claim of vote dilution.\n*43 A SECTION 2 AND ITS LEGISLATIVE HISTORY Subsection 2(a) prohibits all States and political subdivisions from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures which result in the denial or abridgment of the right to vote of any citizen who is a member of a protected class of racial and language minorities. Subsection 2(b) establishes that \u017e 2 has been violated where the \"totality of circumstances\" reveal that \"the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.\" While explaining that \"[t]he extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered\" in evaluating an alleged violation, \u017e 2(b) cautions that \"nothing in [\u017e 2] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.\" The Senate Report which accompanied the 1982 amendments elaborates on the nature of \u017e 2 violations and on the proof required to establish these violations.[7] First and foremost, the Report dispositively rejects the position of the plurality in Mobile v. Bolden, 446 U.S. 55 (1980), which *44 required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters.[8] See, e. g., S. Rep., at 2, 15-16, 27. The intent test was repudiated for three principal reasons \u00d4\u00c7\u00f6 it is \"unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities,\" it places an \"inordinately difficult\" burden of proof on plaintiffs, and it \"asks the wrong question.\" Id., at 36. The \"right\" question, as the Report emphasizes repeatedly, is whether \"as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.\"[9]Id., at 28. See also id., at 2, 27, 29, n. 118, 36. In order to answer this question, a court must assess the impact of the contested structure or practice on minority electoral opportunities \"on the basis of objective factors.\" Id., at 27. The Senate Report specifies factors which typically may be relevant to a \u017e 2 claim: the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political *45 subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction. Id., at 28-29; see also supra, at 36-37. The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State's or the political subdivision's use of the contested practice or structure is tenuous may have probative value. Id., at 29. The Report stresses, however, that this list of typical factors is neither comprehensive nor exclusive. While the enumerated factors will often be pertinent to certain types of \u017e 2 violations, particularly to vote dilution claims,[10] other factors may also be relevant and may be considered. Id., at 29-30. Furthermore, the Senate Committee observed that \"there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.\" Id., at 29. Rather, the Committee determined that \"the question whether the political processes are `equally open' depends upon a searching practical evaluation of the `past and present reality,' \" id., at 30 (footnote omitted), and on a \"functional\" view of the political process. Id., at 30, n. 120. *46 Although the Senate Report espouses a flexible, fact-intensive test for \u017e 2 violations, it limits the circumstances under which \u017e 2 violations may be proved in three ways. First, electoral devices, such as at-large elections, may not be considered per se violative of \u017e 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process. Id., at 16. Second, the conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation alone does not establish a violation. Ibid. Third, the results test does not assume the existence of racial bloc voting; plaintiffs must prove it. Id., at 33.\nB VOTE DILUTION THROUGH THE USE OF MULTIMEMBER DISTRICTS Appellees contend that the legislative decision to employ multimember, rather than single-member, districts in the contested jurisdictions dilutes their votes by submerging them in a white majority,[11] thus impairing their ability to elect representatives of their choice.[12] *47 The essence of a \u017e 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives. This Court has long recognized that multimember districts and at-large voting schemes may \" `operate to minimize or cancel out the voting strength of racial [minorities in] the voting population.' \"[13]Burns v. Richardson, 384 U. S. *48 73, 88 (1966) (quoting Fortson v. Dorsey, 379 U.S. 433, 439 (1965)). See also Rogers v. Lodge, 458 U.S. 613, 617 (1982); White v. Regester, 412 U. S., at 765; Whitcomb v. Chavis, 403 U.S. 124, 143 (1971). The theoretical basis for this type of impairment is that where minority and majority voters consistently prefer different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters.[14] See, e. g., Grofman, Alternatives, in Representation and Redistricting Issues 113-114. Multimember districts and at-large election schemes, however, are not per se violative of minority voters' rights. S. Rep., at 16. Cf. Rogers v. Lodge, supra, at 617; Regester, supra, at 765; Whitcomb, supra, at 142. Minority voters who contend that the multimember form of districting violates \u017e 2 must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates. See, e. g., S. Rep., at 16. While many or all of the factors listed in the Senate Report may be relevant to a claim of vote dilution through submergence in multimember districts, unless there is a conjunction of the following circumstances, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice.[15] Stated succinctly, *49 a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group. Bonapfel 355; Blacksher & Menefee 34; Butler 903; Carpeneti 696-699; Davidson, Minority Vote Dilution: An Overview (hereinafter Davidson), in Minority Vote Dilution 4; Grofman, Alternatives 117. Cf. Bolden, 446 U. S., at 105, n. 3 (MARSHALL, J., dissenting) (\"It is obvious *50 that the greater the degree to which the electoral minority is homogeneous and insular and the greater the degree that bloc voting occurs along majority-minority lines, the greater will be the extent to which the minority's voting power is diluted by multimember districting\"). These circumstances are necessary preconditions for multimember districts to operate to impair minority voters' ability to elect representatives of their choice for the following reasons. First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.[16] If it is not, as would be the case in a substantially integrated district, the multimember form of the district cannot be responsible for minority voters' inability to elect its candidates.[17] Cf. Rogers, 458 *51 U. S., at 616. See also, Blacksher & Menefee 51-56, 58; Bonapfel 355; Carpeneti 696; Davidson 4; Jewell 130. Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Blacksher & Menefee 51-55, 58-60, and n. 344; Carpeneti 696-697; Davidson 4. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it \u00d4\u00c7\u00f6 in the absence of special circumstances, such as the minority candidate running unopposed, see, infra, at 57, and n. 26 \u00d4\u00c7\u00f6 usually to defeat the minority's preferred candidate. See, e. g., Blacksher & Menefee 51, 53, 56-57, 60. Cf. Rogers, supra, at 616-617; Whitcomb, 403 U. S., at 158-159; McMillan v. Escambia County, Fla., 748 F.2d 1037, 1043 (CA5 1984). In establishing this last circumstance, the minority group demonstrates that submergence in a white multimember district impedes its ability to elect its chosen representatives. Finally, we observe that the usual predictability of the majority's success distinguishes structural dilution from the mere loss of an occasional election. Cf. Davis v. Bandemer, post, at 131-133, 139-140 (opinion of WHITE, J.); Bolden, supra, at 111, n. 7 (MARSHALL, J., dissenting); Whitcomb, supra, at 153. See also Blacksher & Menefee 57, n. 333; Note, Geometry and Geography: Racial Gerrymandering and the Voting Rights Act, 94 Yale L. J. 189, 200, n. 66 (1984) (hereinafter Note, Geometry and Geography).\n*52 III RACIALLY POLARIZED VOTING Having stated the general legal principles relevant to claims that \u017e 2 has been violated through the use of multimember districts, we turn to the arguments of appellants and of the United States as amicus curiae addressing racially polarized voting.[18] First, we describe the District Court's treatment of racially polarized voting. Next, we consider appellants' claim that the District Court used an incorrect legal standard to determine whether racial bloc voting in the contested districts was sufficiently severe to be cognizable as an element of a \u017e 2 claim. Finally, we consider appellants' contention that the trial court employed an incorrect definition of racially polarized voting and thus erroneously relied on statistical evidence that was not probative of racial bloc voting.\nA THE DISTRICT COURT'S TREATMENT OF RACIALLY POLARIZED VOTING The investigation conducted by the District Court into the question of racial bloc voting credited some testimony of lay witnesses, but relied principally on statistical evidence presented by appellees' expert witnesses, in particular that offered by Dr. Bernard Grofman. Dr. Grofman collected and evaluated data from 53 General Assembly primary and general elections involving black candidacies. These elections were held over a period of three different election years in the six originally challenged multimember districts.[19] Dr. Grofman subjected the data to two complementary methods of analysis \u00d4\u00c7\u00f6 extreme case analysis and bivariate ecological *53 regression analysis[20] \u00d4\u00c7\u00f6 in order to determine whether blacks and whites in these districts differed in their voting behavior. These analytic techniques yielded data concerning the voting patterns of the two races, including estimates of the percentages of members of each race who voted for black candidates. The court's initial consideration of these data took the form of a three-part inquiry: did the data reveal any correlation between the race of the voter and the selection of certain candidates; was the revealed correlation statistically significant; and was the difference in black and white voting patterns \"substantively significant\"? The District Court found that blacks and whites generally preferred different candidates and, on that basis, found voting in the districts to be racially correlated.[21] The court accepted Dr. Grofman's expert opinion that the correlation between the race of the voter and the voter's choice of certain candidates was statistically significant.[22] Finally, adopting Dr. Grofman's terminology, see *54 Tr. 195, the court found that in all but 2 of the 53 elections[23] the degree of racial bloc voting was \"so marked as to be substantively significant, in the sense that the results of the individual election would have been different depending upon whether it had been held among only the white voters or only the black voters.\" 590 F. Supp., at 368. The court also reported its findings, both in tabulated numerical form and in written form, that a high percentage of black voters regularly supported black candidates and that most white voters were extremely reluctant to vote for black candidates. The court then considered the relevance to the existence of legally significant white bloc voting of the fact that black candidates have won some elections. It determined that in most instances, special circumstances, such as incumbency and lack of opposition, rather than a diminution in usually severe white bloc voting, accounted for these candidates' success. The court also suggested that black voters' reliance on bullet voting was a significant factor in their successful efforts to elect candidates of their choice. Based on all of the evidence before it, the trial court concluded that each of the districts experienced racially polarized voting \"in a persistent and severe degree.\" Id., at 367.\nB THE DEGREE OF BLOC VOTING THAT IS LEGALLY SIGNIFICANT UNDER \u017e 2 1 Appellants' Arguments North Carolina and the United States argue that the test used by the District Court to determine whether voting patterns in the disputed districts are racially polarized to an extent cognizable under \u017e 2 will lead to results that are inconsistent with congressional intent. North Carolina maintains *55 that the court considered legally significant racially polarized voting to occur whenever \"less than 50% of the white voters cast a ballot for the black candidate.\" Brief for Appellants 36. Appellants also argue that racially polarized voting is legally significant only when it always results in the defeat of black candidates. Id., at 39-40. The United States, on the other hand, isolates a single line in the court's opinion and identifies it as the court's complete test. According to the United States, the District Court adopted a standard under which legally significant racial bloc voting is deemed to exist whenever \" `the results of the individual election would have been different depending upon whether it had been held among only the white voters or only the black voters in the election.' \" Brief for United States as Amicus Curiae 29 (quoting 590 F. Supp., at 368). We read the District Court opinion differently.\n2 The Standard for Legally Significant Racial Bloc Voting The Senate Report states that the \"extent to which voting in the elections of the state or political subdivision is racially polarized,\" S. Rep., at 29, is relevant to a vote dilution claim. Further, courts and commentators agree that racial bloc voting is a key element of a vote dilution claim. See, e. g., Escambia County, Fla., 748 F. 2d, at 1043; United States v. Marengo County Comm'n, 731 F.2d 1546, 1566 (CA11), appeal dism'd and cert. denied, 469 U.S. 976 (1984); Nevett v. Sides, 571 F.2d 209, 223 (CA5 1978), cert. denied, 446 U.S. 951 (1980); Johnson v. Halifax County, 594 F. Supp. 161, 170 (EDNC 1984); Blacksher & Menefee; Engstrom & Wildgen, 465, 469; Parker 107; Note, Geometry and Geography 199. Because, as we explain below, the extent of bloc voting necessary to demonstrate that a minority's ability to elect its preferred representatives is impaired varies according to several factual circumstances, the degree of bloc voting which constitutes the threshold of legal significance will vary *56 from district to district. Nonetheless, it is possible to state some general principles and we proceed to do so. The purpose of inquiring into the existence of racially polarized voting is twofold: to ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates. See supra, at 48-51. Thus, the question whether a given district experiences legally significant racially polarized voting requires discrete inquiries into minority and white voting practices. A showing that a significant number of minority group members usually vote for the same candidates is one way of proving the political cohesiveness necessary to a vote dilution claim, Blacksher & Menefee 59-60, and n. 344, and, consequently, establishes minority bloc voting within the context of \u017e 2. And, in general, a white bloc vote that normally will defeat the combined strength of minority support plus white \"crossover\" votes rises to the level of legally significant white bloc voting. Id., at 60. The amount of white bloc voting that can generally \"minimize or cancel,\" S. Rep., at 28; Regester, 412 U. S., at 765, black voters' ability to elect representatives of their choice, however, will vary from district to district according to a number of factors, including the nature of the allegedly dilutive electoral mechanism; the presence or absence of other potentially dilutive electoral devices, such as majority vote requirements, designated posts, and prohibitions against bullet voting; the percentage of registered voters in the district who are members of the minority group; the size of the district; and, in multimember districts, the number of seats open and the number of candidates in the field.[24] See, e. g., Butler 874-876; Davidson 5; Jones, The Impact of Local Election Systems on Black Political Representation, 11 Urb. Aff. Q. 345 (1976); United States Commission *57 on Civil Rights, The Voting Rights Act: Unfulfilled Goals 38-41 (1981). Because loss of political power through vote dilution is distinct from the mere inability to win a particular election, Whitcomb, 403 U. S., at 153, a pattern of racial bloc voting that extends over a period of time is more probative of a claim that a district experiences legally significant polarization than are the results of a single election.[25] Blacksher & Menefee 61; Note, Geometry and Geography 200, n. 66 (\"Racial polarization should be seen as an attribute not of a single election, but rather of a polity viewed over time. The concern is necessarily temporal and the analysis historical because the evil to be avoided is the subordination of minority groups in American politics, not the defeat of individuals in particular electoral contests\"). Also for this reason, in a district where elections are shown usually to be polarized, the fact that racially polarized voting is not present in one or a few individual elections does not necessarily negate the conclusion that the district experiences legally significant bloc voting. Furthermore, the success of a minority candidate in a particular election does not necessarily prove that the district did not experience polarized voting in that election; special circumstances, such as the absence of an opponent, incumbency, or the utilization of bullet voting, may explain minority electoral success in a polarized contest.[26] As must be apparent, the degree of racial bloc voting that is cognizable as an element of a \u017e 2 vote dilution claim will *58 vary according to a variety of factual circumstances. Consequently, there is no simple doctrinal test for the existence of legally significant racial bloc voting. However, the foregoing general principles should provide courts with substantial guidance in determining whether evidence that black and white voters generally prefer different candidates rises to the level of legal significance under \u017e 2.\n3 Standard Utilized by the District Court The District Court clearly did not employ the simplistic standard identified by North Carolina \u00d4\u00c7\u00f6 legally significant bloc voting occurs whenever less than 50% of the white voters cast a ballot for the black candidate. Brief for Appellants 36. And, although the District Court did utilize the measure of \"substantive significance\" that the United States ascribes to it \u00d4\u00c7\u00f6 \" `the results of the individual election would have been different depending on whether it had been held among only the white voters or only the black voters,' \" Brief for United States as Amicus Curiae 29 (quoting 590 F. Supp., at 368) \u00d4\u00c7\u00f6 the court did not reach its ultimate conclusion that the degree of racial bloc voting present in each district is legally significant through mechanical reliance on this standard.[27] While the court did not phrase the standard for legally significant racial bloc voting exactly as we do, a fair reading of the court's opinion reveals that the court's analysis conforms to our view of the proper legal standard. The District Court's findings concerning black support for black candidates in the five multimember districts at issue *59 here clearly establish the political cohesiveness of black voters. As is apparent from the District Court's tabulated findings, reproduced in Appendix A to opinion, post, p. 80, black voters' support for black candidates was overwhelming in almost every election. In all but 5 of 16 primary elections, black support for black candidates ranged between 71% and 92%; and in the general elections, black support for black Democratic candidates ranged between 87% and 96%. In sharp contrast to its findings of strong black support for black candidates, the District Court found that a substantial majority of white voters would rarely, if ever, vote for a black candidate. In the primary elections, white support for black candidates ranged between 8% and 50%, and in the general elections it ranged between 28% and 49%. See ibid. The court also determined that, on average, 81.7% of white voters did not vote for any black candidate in the primary elections. In the general elections, white voters almost always ranked black candidates either last or next to last in the multicandidate field, except in heavily Democratic areas where white voters consistently ranked black candidates last among the Democrats, if not last or next to last among all candidates. The court further observed that approximately two-thirds of white voters did not vote for black candidates in general elections, even after the candidate had won the Democratic primary and the choice was to vote for a Republican or for no one.[28] *60 While the District Court did not state expressly that the percentage of whites who refused to vote for black candidates in the contested districts would, in the usual course of events, result in the defeat of the minority's candidates, that conclusion is apparent both from the court's factual findings and from the rest of its analysis. First, with the exception of House District 23, see infra, at 77, the trial court's findings clearly show that black voters have enjoyed only minimal and sporadic success in electing representatives of their choice. See Appendix B to opinion, post, p. 82. Second, where black candidates won elections, the court closely examined the circumstances of those elections before concluding that the success of these blacks did not negate other evidence, derived from all of the elections studied in each district, that legally significant racially polarized voting exists in each district. For example, the court took account of the benefits incumbency and running essentially unopposed conferred on some of the successful black candidates,[29] as well as of the *61 very different order of preference blacks and whites assigned black candidates,[30] in reaching its conclusion that legally significant racial polarization exists in each district. We conclude that the District Court's approach, which tested data derived from three election years in each district, and which revealed that blacks strongly supported black candidates, while, to the black candidates' usual detriment, whites rarely did, satisfactorily addresses each facet of the proper legal standard.\nC EVIDENCE OF RACIALLY POLARIZED VOTING 1 Appellants' Argument North Carolina and the United States also contest the evidence upon which the District Court relied in finding that voting patterns in the challenged districts were racially polarized. They argue that the term \"racially polarized voting\" must, as a matter of law, refer to voting patterns for which the principal cause is race. They contend that the District Court utilized a legally incorrect definition of racially polarized voting by relying on bivariate statistical analyses which merely demonstrated a correlation between the race of the voter and the level of voter support for certain candidates, but which did not prove that race was the primary determinant of voters' choices. According to appellants and the United States, only multiple regression analysis, which can take account of other variables which might also explain voters' choices, such as \"party affiliation, age, religion, income[,] incumbency, education, campaign expenditures,\" Brief for *62 Appellants 42, \"media use measured by cost, . . . name, identification, or distance that a candidate lived from a particular precinct,\" Brief for United States as Amicus Curiae 30, n. 57, can prove that race was the primary determinant of voter behavior.[31] Whether appellants and the United States believe that it is the voter's race or the candidate's race that must be the primary determinant of the voter's choice is unclear; indeed, their catalogs of relevant variables suggest both.[32] Age, religion, income, and education seem most relevant to the voter; incumbency, campaign expenditures, name identification, and media use are pertinent to the candidate; and party affiliation could refer both to the voter and the candidate. In either case, we disagree: For purposes of \u017e 2, the legal concept of racially polarized voting incorporates neither causation nor intent. It means simply that the race of voters correlates with the selection of a certain candidate or candidates; that is, it refers to the situation where different races (or minority language groups) vote in blocs for different candidates. Grofman, Migalski, & Noviello 203. As we demonstrate infra, appellants' theory of racially polarized voting would thwart the goals Congress sought to achieve when it amended \u017e 2 and would prevent courts from performing the \"functional\" analysis of the political process, S. Rep., at 30, n. 119, and the \"searching practical evaluation of the `past *63 and present reality,' \" id., at 30 (footnote omitted), mandated by the Senate Report.\n2 Causation Irrelevant to Section 2 Inquiry The first reason we reject appellants' argument that racially polarized voting refers to voting patterns that are in some way caused by race, rather than to voting patterns that are merely correlated with the race of the voter, is that the reasons black and white voters vote differently have no relevance to the central inquiry of \u017e 2. By contrast, the correlation between race of voter and the selection of certain candidates is crucial to that inquiry. Both \u017e 2 itself and the Senate Report make clear that the critical question in a \u017e 2 claim is whether the use of a contested electoral practice or structure results in members of a protected group having less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. See, e. g., S. Rep., at 2, 27, 28, 29, n. 118, 36. As we explained, supra, at 47-48, multimember districts may impair the ability of blacks to elect representatives of their choice where blacks vote sufficiently as a bloc as to be able to elect their preferred candidates in a black majority, single-member district and where a white majority votes sufficiently as a bloc usually to defeat the candidates chosen by blacks. It is the difference between the choices made by blacks and whites \u00d4\u00c7\u00f6 not the reasons for that difference \u00d4\u00c7\u00f6 that results in blacks having less opportunity than whites to elect their preferred representatives. Consequently, we conclude that under the \"results test\" of \u017e 2, only the correlation between race of voter and selection of certain candidates, not the causes of the correlation, matters. The irrelevance to a \u017e 2 inquiry of the reasons why black and white voters vote differently supports, by itself, our rejection of appellants' theory of racially polarized voting. However, their theory contains other equally serious flaws *64 that merit further attention. As we demonstrate below, the addition of irrelevant variables distorts the equation and yields results that are indisputably incorrect under \u017e 2 and the Senate Report.\n3 Race of Voter as Primary Determinant of Voter Behavior Appellants and the United States contend that the legal concept of \"racially polarized voting\" refers not to voting patterns that are merely correlated with the voter's race, but to voting patterns that are determined primarily by the voter's race, rather than by the voter's other socioeconomic characteristics. The first problem with this argument is that it ignores the fact that members of geographically insular racial and ethnic groups frequently share socioeconomic characteristics, such as income level, employment status, amount of education, housing and other living conditions, religion, language, and so forth. See, e. g., Butler 902 (Minority group \"members' shared concerns, including political ones, are . . . a function of group status, and as such are largely involuntary. . . . As a group blacks are concerned, for example, with police brutality, substandard housing, unemployment, etc., because these problems fall disproportionately upon the group\"); S. Verba & N. Nie, Participation in America 151-152 (1972) (\"Socioeconomic status . . . is closely related to race. Blacks in American society are likely to be in lower-status jobs than whites, to have less education, and to have lower incomes\"). Where such characteristics are shared, race or ethnic group not only denotes color or place of origin, it also functions as a shorthand notation for common social and economic characteristics. Appellants' definition of racially polarized voting is even more pernicious where shared characteristics are causally related to race or ethnicity. The opportunity to achieve high employment status and income, for example, is often influenced by the presence or absence of racial or ethnic discrimination. A definition of racially polarized voting which *65 holds that black bloc voting does not exist when black voters' choice of certain candidates is most strongly influenced by the fact that the voters have low incomes and menial jobs \u00d4\u00c7\u00f6 when the reason most of those voters have menial jobs and low incomes is attributable to past or present racial discrimination \u00d4\u00c7\u00f6 runs counter to the Senate Report's instruction to conduct a searching and practical evaluation of past and present reality, S. Rep., at 30, and interferes with the purpose of the Voting Rights Act to eliminate the negative effects of past discrimination on the electoral opportunities of minorities. Id., at 5, 40. Furthermore, under appellants' theory of racially polarized voting, even uncontrovertible evidence that candidates strongly preferred by black voters are always defeated by a bloc voting white majority would be dismissed for failure to prove racial polarization whenever the black and white populations could be described in terms of other socioeconomic characteristics. To illustrate, assume a racially mixed, urban multimember district in which blacks and whites possess the same socioeconomic characteristics that the record in this case attributes to blacks and whites in Halifax County, a part of Senate District 2. The annual mean income for blacks in this district is $10,465, and 47.8% of the black community lives in poverty. More than half \u00d4\u00c7\u00f6 51.5% \u00d4\u00c7\u00f6 of black adults over the age of 25 have only an eighth-grade education or less. Just over half of black citizens reside in their own homes; 48.9% live in rental units. And, almost a third of all black households are without a car. In contrast, only 12.6% of the whites in the district live below the poverty line. Whites enjoy a mean income of $19,042. White residents are better educated than blacks \u00d4\u00c7\u00f6 only 25.6% of whites over the age of 25 have only an eighth-grade education or less. Furthermore, only 26.2% of whites live in rental units, and only 10.2% live in households with no vehicle available. 1 App., Ex-44. As is the case in Senate District 2, blacks in this *66 hypothetical urban district have never been able to elect a representative of their choice. According to appellants' theory of racially polarized voting, proof that black and white voters in this hypothetical district regularly choose different candidates and that the blacks' preferred candidates regularly lose could be rejected as not probative of racial bloc voting. The basis for the rejection would be that blacks chose a certain candidate, not principally because of their race, but principally because this candidate best represented the interests of residents who, because of their low incomes, are particularly interested in government-subsidized health and welfare services; who are generally poorly educated, and thus share an interest in job training programs; who are, to a greater extent than the white community, concerned with rent control issues; and who favor major public transportation expenditures. Similarly, whites would be found to have voted for a different candidate, not principally because of their race, but primarily because that candidate best represented the interests of residents who, due to their education and income levels, and to their property and vehicle ownership, favor gentrification, low residential property taxes, and extensive expenditures for street and highway improvements. Congress could not have intended that courts employ this definition of racial bloc voting. First, this definition leads to results that are inconsistent with the effects test adopted by Congress when it amended \u017e 2 and with the Senate Report's admonition that courts take a \"functional\" view of the political process, S. Rep. 30, n. 119, and conduct a searching and practical evaluation of reality. Id., at 30. A test for racially polarized voting that denies the fact that race and socioeconomic characteristics are often closely correlated permits neither a practical evaluation of reality nor a functional analysis of vote dilution. And, contrary to Congress' intent in adopting the \"results test,\" appellants' proposed definition could result in the inability of minority voters to establish a critical *67 element of a vote dilution claim, even though both races engage in \"monolithic\" bloc voting, id., at 33, and generations of black voters have been unable to elect a representative of their choice. Second, appellants' interpretation of \"racially polarized voting\" creates an irreconcilable tension between their proposed treatment of socioeconomic characteristics in the bloc voting context and the Senate Report's statement that \"the extent to which members of the minority group . . . bear the effects of discrimination in such areas as education, employment and health\" may be relevant to a \u017e 2 claim. Id., at 29. We can find no support in either logic or the legislative history for the anomalous conclusion to which appellants' position leads \u00d4\u00c7\u00f6 that Congress intended, on the one hand, that proof that a minority group is predominately poor, uneducated, and unhealthy should be considered a factor tending to prove a \u017e 2 violation; but that Congress intended, on the other hand, that proof that the same socioeconomic characteristics greatly influence black voters' choice of candidates should destroy these voters' ability to establish one of the most important elements of a vote dilution claim.\n4 Race of Candidate as Primary Determinant of Voter Behavior North Carolina's and the United States' suggestion that racially polarized voting means that voters select or reject candidates principally on the basis of the candidate's race is also misplaced. First, both the language of \u017e 2 and a functional understanding of the phenomenon of vote dilution mandate the conclusion that the race of the candidate per se is irrelevant to racial bloc voting analysis. Section 2(b) states that a violation is established if it can be shown that members of a protected minority group \"have less opportunity than other members of the electorate to . . . elect representatives of their choice.\" *68 (Emphasis added.) Because both minority and majority voters often select members of their own race as their preferred representatives, it will frequently be the case that a black candidate is the choice of blacks, while a white candidate is the choice of whites. Cf. Letter to the Editor from Chandler Davidson, 17 New Perspectives 38 (Fall 1985). Indeed, the facts of this case illustrate that tendency \u00d4\u00c7\u00f6 blacks preferred black candidates, whites preferred white candidates. Thus, as a matter of convenience, we and the District Court may refer to the preferred representative of black voters as the \"black candidate\" and to the preferred representative of white voters as the \"white candidate.\" Nonetheless, the fact that race of voter and race of candidate is often correlated is not directly pertinent to a \u017e 2 inquiry. Under \u017e 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important. An understanding of how vote dilution through submergence in a white majority works leads to the same conclusion. The essence of a submergence claim is that minority group members prefer certain candidates whom they could elect were it not for the interaction of the challenged electoral law or structure with a white majority that votes as a significant bloc for different candidates. Thus, as we explained in Part III, supra, the existence of racial bloc voting is relevant to a vote dilution claim in two ways. Bloc voting by blacks tends to prove that the black community is politically cohesive, that is, it shows that blacks prefer certain candidates whom they could elect in a single-member, black majority district. Bloc voting by a white majority tends to prove that blacks will generally be unable to elect representatives of their choice. Clearly, only the race of the voter, not the race of the candidate, is relevant to vote dilution analysis. See, e. g., Blacksher & Menefee 59-60; Grofman, Should Representatives be Typical?, in Representation and Redistricting Issues 98; Note, Geometry and Geography 207. *69 Second, appellants' suggestion that racially polarized voting refers to voting patterns where whites vote for white candidates because they prefer members of their own race or are hostile to blacks, as opposed to voting patterns where whites vote for white candidates because the white candidates spent more on their campaigns, utilized more media coverage, and thus enjoyed greater name recognition than the black candidates, fails for another, independent reason. This argument, like the argument that the race of the voter must be the primary determinant of the voter's ballot, is inconsistent with the purposes of \u017e 2 and would render meaningless the Senate Report factor that addresses the impact of low socioeconomic status on a minority group's level of political participation. Congress intended that the Voting Rights Act eradicate inequalities in political opportunities that exist due to the vestigial effects of past purposeful discrimination. S. Rep., at 5, 40; H. R. Rep. No. 97-227, p. 31 (1981). Both this Court and other federal courts have recognized that political participation by minorities tends to be depressed where minority group members suffer effects of prior discrimination such as inferior education, poor employment opportunities, and low incomes. See, e. g., White v. Regester, 412 U. S., at 768-769; Kirksey v. Board of Supervisors of Hinds County, Miss., 554 F.2d 139, 145-146 (CA5) (en banc), cert. denied, 434 U.S. 968 (1977). See also S. Verba & N. Nie, Participation in America 152 (1972). The Senate Report acknowledges this tendency and instructs that \"the extent to which members of the minority group . . . bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process,\" S. Rep., at 29 (footnote omitted), is a factor which may be probative of unequal opportunity to participate in the political process and to elect representatives. Courts and commentators have recognized further that candidates generally must spend more money in order to win *70 election in a multimember district than in a single-member district. See, e. g., Graves v. Barnes, 343 F. Supp. 704, 720-721 (WD Tex. 1972), aff'd in part and rev'd in part sub nom. White v. Regester, supra. Berry & Dye 88; Davidson & Fraga, Nonpartisan Slating Groups in an At-Large Setting, in Minority Vote Dilution 122-123; Derfner 554, n. 126; Jewell 131; Karnig, Black Representation on City Councils, 12 Urb. Aff. Q. 223, 230 (1976). If, because of inferior education and poor employment opportunities, blacks earn less than whites, they will not be able to provide the candidates of their choice with the same level of financial support that whites can provide theirs. Thus, electoral losses by candidates preferred by the black community may well be attributable in part to the fact that their white opponents outspent them. But, the fact is that, in this instance, the economic effects of prior discrimination have combined with the multimember electoral structure to afford blacks less opportunity than whites to participate in the political process and to elect representatives of their choice. It would be both anomalous and inconsistent with congressional intent to hold that, on the one hand, the effects of past discrimination which hinder blacks' ability to participate in the political process tend to prove a \u017e 2 violation, while holding on the other hand that, where these same effects of past discrimination deter whites from voting for blacks, blacks cannot make out a crucial element of a vote dilution claim. Accord, Escambia County, 748 F. 2d, at 1043 (\" `[T]he failure of the blacks to solicit white votes may be caused by the effects of past discrimination' \") (quoting United States v. Dallas County Comm'n, 739 F.2d 1529, 1536 (CA11 1984)); United States v. Marengo County Comm'n, 731 F. 2d, at 1567.\n5 Racial Animosity as Primary Determinant of Voter Behavior Finally, we reject the suggestion that racially polarized voting refers only to white bloc voting which is caused by *71 white voters' racial hostility toward black candidates.[33] To accept this theory would frustrate the goals Congress sought to achieve by repudiating the intent test of Mobile v. Bolden, 446 U.S. 55 (1980), and would prevent minority voters who have clearly been denied an opportunity to elect representatives of their choice from establishing a critical element of a vote dilution claim. In amending \u017e 2, Congress rejected the requirement announced by this Court in Bolden, supra, that \u017e 2 plaintiffs must prove the discriminatory intent of state or local governments in adopting or maintaining the challenged electoral mechanism.[34] Appellants' suggestion that the discriminatory intent of individual white voters must be proved in order to make out a \u017e 2 claim must fail for the very reasons Congress rejected the intent test with respect to governmental bodies. See Engstrom, The Reincarnation of the Intent Standard: Federal Judges and At-Large Election Cases, 28 How. L. J. 495 (1985). The Senate Report states that one reason the Senate Committee abandoned the intent test was that \"the Committee. . . heard persuasive testimony that the intent test is unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities.\" S. Rep., at 36. The Committee found the testimony of Dr. Arthur S. *72 Flemming, Chairman of the United States Commission on Civil Rights, particularly persuasive. He testified: \" `[Under an intent test] [l]itigators representing excluded minorities will have to explore the motivations of individual council members, mayors, and other citizens. The question would be whether their decisions were motivated by invidious racial considerations. Such inquiries can only be divisive, threatening to destroy any existing racial progress in a community. It is the intent test, not the results test, that would make it necessary to brand individuals as racist in order to obtain judicial relief.' \" Ibid. (footnote omitted). The grave threat to racial progress and harmony which Congress perceived from requiring proof that racism caused the adoption or maintenance of a challenged electoral mechanism is present to a much greater degree in the proposed requirement that plaintiffs demonstrate that racial animosity determined white voting patterns. Under the old intent test, plaintiffs might succeed by proving only that a limited number of elected officials were racist; under the new intent test plaintiffs would be required to prove that most of the white community is racist in order to obtain judicial relief. It is difficult to imagine a more racially divisive requirement. A second reason Congress rejected the old intent test was that in most cases it placed an \"inordinately difficult burden\" on \u017e 2 plaintiffs. Ibid. The new intent test would be equally, if not more, burdensome. In order to prove that a specific factor \u00d4\u00c7\u00f6 racial hostility \u00d4\u00c7\u00f6 determined white voters' ballots, it would be necessary to demonstrate that other potentially relevant causal factors, such as socioeconomic characteristics and candidate expenditures, do not correlate better than racial animosity with white voting behavior. As one commentator has explained: *73 \"Many of the[se] independent variables . . . would be all but impossible for a social scientist to operationalize as interval-level independent variables for use in a multiple regression equation, whether on a step-wise basis or not. To conduct such an extensive statistical analysis as this implies, moreover, can become prohibitively expensive. \"Compared to this sort of effort, proving discriminatory intent in the adoption of an at-large election system is both simple and inexpensive.\" McCrary, Discriminatory Intent: The Continuing Relevance of \"Purpose\" Evidence in Vote-Dilution Lawsuits, 28 How. L. J. 463, 492 (1985) (footnote omitted). The final and most dispositive reason the Senate Report repudiated the old intent test was that it \"asks the wrong question.\" S. Rep., at 36. Amended \u017e 2 asks instead \"whether minorities have equal access to the process of electing their representatives.\" Ibid. Focusing on the discriminatory intent of the voters, rather than the behavior of the voters, also asks the wrong question. All that matters under \u017e 2 and under a functional theory of vote dilution is voter behavior, not its explanations. Moreover, as we have explained in detail, supra, requiring proof that racial considerations actually caused voter behavior will result \u00d4\u00c7\u00f6 contrary to congressional intent \u00d4\u00c7\u00f6 in situations where a black minority that functionally has been totally excluded from the political process will be unable to establish a \u017e 2 violation. The Senate Report's remark concerning the old intent test thus is pertinent to the new test: The requirement that a \"court . . . make a separate . . . finding of intent, after accepting the proof of the factors involved in the White [v. Regester, 412 U.S. 755] analysis . . . [would] seriously clou[d] the prospects of eradicating the remaining instances of racial discrimination in American elections.\" Id., at 37. We therefore decline to adopt such a requirement.\n*74 6 Summary In sum, we would hold that the legal concept of racially polarized voting, as it relates to claims of vote dilution, refers only to the existence of a correlation between the race of voters and the selection of certain candidates. Plaintiffs need not prove causation or intent in order to prove a prima facie case of racial bloc voting and defendants may not rebut that case with evidence of causation or intent.\nIV THE LEGAL SIGNIFICANCE OF SOME BLACK CANDIDATES' SUCCESS A North Carolina and the United States maintain that the District Court failed to accord the proper weight to the success of some black candidates in the challenged districts. Black residents of these districts, they point out, achieved improved representation in the 1982 General Assembly election.[35] They also note that blacks in House District 23 have enjoyed proportional representation consistently since 1973 and that blacks in the other districts have occasionally enjoyed nearly proportional representation.[36] This electoral *75 success demonstrates conclusively, appellants and the United States argue, that blacks in those districts do not have \"less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.\" 42 U.S. C. \u017e 1973(b). Essentially, appellants and the United States contend that if a racial minority gains proportional or nearly proportional representation in a single election, that fact alone precludes, as a matter of law, finding a \u017e 2 violation. Section 2(b) provides that \"[t]he extent to which members of a protected class have been elected to office . . . is one circumstance which may be considered.\" 42 U.S. C. \u017e 1973(b). The Senate Committee Report also identifies the extent to which minority candidates have succeeded as a pertinent factor. S. Rep., at 29. However, the Senate Report expressly states that \"the election of a few minority candidates does not `necessarily foreclose the possibility of dilution of the black vote,' \" noting that if it did, \"the possibility exists that the majority citizens might evade [\u017e 2] by manipulating the election of a `safe' minority candidate.\" Id., at 29, n. 115, quoting Zimmer v. McKeithen, 485 F.2d 1297, 1307 (CA5 1973) (en banc), aff'd sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976) (per curiam). The Senate Committee decided, instead, to \" `require an independent consideration of the record.' \" S. Rep., at 29, n. 115. The Senate Report also emphasizes that the question whether \"the political processes are `equally open' depends upon a searching practical evaluation of the `past and present reality.' \" Id., at 30 (footnote omitted). Thus, the language of \u017e 2 and its legislative history plainly demonstrate that proof that some minority candidates have been elected does not foreclose a \u017e 2 claim. Moreover, in conducting its \"independent consideration of the record\" and its \"searching practical evaluation of the `past *76 and present reality,' \" the District Court could appropriately take account of the circumstances surrounding recent black electoral success in deciding its significance to appellees' claim. In particular, as the Senate Report makes clear, id., at 29, n. 115, the court could properly notice the fact that black electoral success increased markedly in the 1982 election \u00d4\u00c7\u00f6 an election that occurred after the instant lawsuit had been filed \u00d4\u00c7\u00f6 and could properly consider to what extent \"the pendency of this very litigation [might have] worked a one-time advantage for black candidates in the form of unusual organized political support by white leaders concerned to forestall single-member districting.\"[37] 590 F. Supp., at 367, n. 27. Nothing in the statute or its legislative history prohibited the court from viewing with some caution black candidates' success in the 1982 election, and from deciding on the basis of all the relevant circumstances to accord greater weight to blacks' relative lack of success over the course of several recent elections. Consequently, we hold that the District Court did not err, as a matter of law, in refusing to treat the fact that some black candidates have succeeded as dispositive of appellees' \u017e 2 claim. Where multimember districting generally works to dilute the minority vote, it cannot be defended on the ground that it sporadically and serendipitously benefits minority voters.\n*77 B The District Court did err, however, in ignoring the significance of the sustained success black voters have experienced in House District 23. In that district, the last six elections have resulted in proportional representation for black residents. This persistent proportional representation is inconsistent with appellees' allegation that the ability of black voters in District 23 to elect representatives of their choice is not equal to that enjoyed by the white majority. In some situations, it may be possible for \u017e 2 plaintiffs to demonstrate that such sustained success does not accurately reflect the minority group's ability to elect its preferred representatives,[38] but appellees have not done so here. Appellees presented evidence relating to black electoral success in the last three elections; they failed utterly, though, to offer any explanation for the success of black candidates in the previous three elections. Consequently, we believe that the District Court erred, as a matter of law, in ignoring the sustained success black voters have enjoyed in House District 23, and would reverse with respect to that District.\nV ULTIMATE DETERMINATION OF VOTE DILUTION Finally, appellants and the United States dispute the District Court's ultimate conclusion that the multimember districting scheme at issue in this case deprived black voters of an equal opportunity to participate in the political process and to elect representatives of their choice.\nA As an initial matter, both North Carolina and the United States contend that the District Court's ultimate conclusion that the challenged multimember districts operate to dilute *78 black citizens' votes is a mixed question of law and fact subject to de novo review on appeal. In support of their proposed standard of review, they rely primarily on Bose Corp. v. Consumers Union of U. S., Inc., 466 U.S. 485 (1984), a case in which we reconfirmed that, as a matter of constitutional law, there must be independent appellate review of evidence of \"actual malice\" in defamation cases. Appellants and the United States argue that because a finding of vote dilution under amended \u017e 2 requires the application of a rule of law to a particular set of facts it constitutes a legal, rather than factual, determination. Reply Brief for Appellants 7; Brief for United States as Amicus Curiae 18-19. Neither appellants nor the United States cite our several precedents in which we have treated the ultimate finding of vote dilution as a question of fact subject to the clearly-erroneous standard of Rule 52(a). See, e. g., Rogers v. Lodge, 458 U. S., at 622-627; City of Rome v. United States, 446 U.S. 156, 183 (1980); White v. Regester, 412 U. S., at 765-770. Cf. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). In Regester, supra, we noted that the District Court had based its conclusion that minority voters in two multimember districts in Texas had less opportunity to participate in the political process than majority voters on the totality of the circumstances and stated that \"we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the . . . multimember district in the light of past and present reality, political and otherwise.\" Id., at 769-770. Quoting this passage from Regester with approval, we expressly held in Rogers v. Lodge, supra, that the question whether an at-large election system was maintained for discriminatory purposes and subsidiary issues, which include whether that system had the effect of diluting the minority vote, were questions of fact, reviewable under Rule 52(a)'s *79 clearly-erroneous standard. 458 U.S., at 622-623. Similarly, in City of Rome v. United States, we declared that the question whether certain electoral structures had a \"discriminatory effect,\" in the sense of diluting the minority vote, was a question of fact subject to clearly-erroneous review. 446 U.S., at 183. We reaffirm our view that the clearly-erroneous test of Rule 52(a) is the appropriate standard for appellate review of a finding of vote dilution. As both amended \u017e 2 and its legislative history make clear, in evaluating a statutory claim of vote dilution through districting, the trial court is to consider the \"totality of the circumstances\" and to determine, based \"upon a searching practical evaluation of the `past and present reality,' \" S. Rep., at 30 (footnote omitted), whether the political process is equally open to minority voters. \" `This determination is peculiarly dependent upon the facts of each case,' \" Rogers, supra, at 621, quoting Nevett v. Sides, 571 F.2d 209, 224 (CA5 1978), and requires \"an intensely local appraisal of the design and impact\" of the contested electoral mechanisms. 458 U.S., at 622. The fact that amended \u017e 2 and its legislative history provide legal standards which a court must apply to the facts in order to determine whether \u017e 2 has been violated does not alter the standard of review. As we explained in Bose, Rule 52(a) \"does not inhibit an appellate court's power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.\" 466 U.S., at 501, citing Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982); Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 855, n. 15 (1982). Thus, the application of the clearly-erroneous standard to ultimate findings of vote dilution preserves the benefit of the trial court's particular familiarity with the indigenous political reality without endangering the rule of law.\n*80A B The District Court in this case carefully considered the totality of the circumstances and found that in each district racially polarized voting; the legacy of official discrimination in voting matters, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the multimember districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice. It found that the success a few black candidates have enjoyed in these districts is too recent, too limited, and, with regard to the 1982 elections, perhaps too aberrational, to disprove its conclusion. Excepting House District 23, with respect to which the District Court committed legal error, see supra, at 77, we affirm the District Court's judgment. We cannot say that the District Court, composed of local judges who are well acquainted with the political realities of the State, clearly erred in concluding that use of a multimember electoral structure has caused black voters in the districts other than House District 23 to have less opportunity than white voters to elect representatives of their choice. The judgment of the District Court is Affirmed in part and reversed in part.\n*80B APPENDIX A TO OPINION OF BRENNAN, J.\nPercentages of Votes Cast by Black and White Voters for Black Candidates in the Five Contested Districts Senate District 22 Primary General White Black White Black 1978 (Alexander) 47 87 41 94 1980 (Alexander) 23 78 n\/a n\/a 1982 (Polk) 32 83 33 94 *81 House District 21 Primary General White Black White Black 1978 (Blue) 21 76 n\/a n\/a 1980 (Blue) 31 81 44 90 1982 (Blue) 39 82 45 91 House District 23 Primary General White Black White Black 1978 Senate Barns (Repub.) n\/a n\/a 17 5 1978 House Clement 10 89 n\/a n\/a Spaulding 16 92 37 89 1980 House Spaulding n\/a n\/a 49 90 1982 House Clement 26 32 n\/a n\/a Spaulding 37 90 43 89 House District 36 Primary General White Black White Black 1980 (Maxwell) 22 71 28 92 1982 (Berry) 50 79 42 92 1982 (Richardson) 39 71 29 88 House District 39 Primary General White Black White Black 1978 House Kennedy, H. 28 76 32 93 Norman 8 29 n\/a n\/a Ross 17 53 n\/a n\/a Sumter (Repub.) n\/a n\/a 33 25 *82 House District 39 Primary General White Black White Black 1980 House Kennedy, A. 40 86 32 96 Norman 18 36 n\/a n\/a 1980 Senate Small 12 61 n\/a n\/a 1982 House Hauser 25 80 42 87 Kennedy, A. 36 87 46 94 590 F. Supp., at 369-371.\nAPPENDIX B TO OPINION OF BRENNAN, J.\nBlack Candidates Elected From 7 Originally Contested Districts District Prior to (No. Seats) 1972 1972 1974 1976 1978 1980 1982 House 8 (4) 0 0 0 0 0 0 0 House 21 (6) 0 0 0 0 0 1 1 House 23 (3) 0 1 1 1 1 1 1 House 36 (8) 0 0 0 0 0 0 1 House 39 (5) 0 0 1 1 0 0 2 Senate 2 (2) 0 0 0 0 0 0 0 Senate 22 (4) 0 0 1 1 1 0 0 See Brief for Appellees, table printed between pages 8 and 9; App. 93-94. JUSTICE WHITE, concurring. I join Parts I, II, III-A, III-B, IV-A, and V of the Court's opinion and agree with JUSTICE BRENNAN'S opinion as to Part IV-B. I disagree with Part III-C of JUSTICE BRENNAN'S opinion. *83 JUSTICE BRENNAN states in Part III-C that the crucial factor in identifying polarized voting is the race of the voter and that the race of the candidate is irrelevant. Under this test, there is polarized voting if the majority of white voters vote for different candidates than the majority of the blacks, regardless of the race of the candidates. I do not agree. Suppose an eight-member multimember district that is 60% white and 40% black, the blacks being geographically located so that two safe black single-member districts could be drawn. Suppose further that there are six white and two black Democrats running against six white and two black Republicans. Under JUSTICE BRENNAN'S test, there would be polarized voting and a likely \u017e 2 violation if all the Republicans, including the two blacks, are elected, and 80% of the blacks in the predominantly black areas vote Democratic. I take it that there would also be a violation in a single-member district that is 60% black, but enough of the blacks vote with the whites to elect a black candidate who is not the choice of the majority of black voters. This is interest-group politics rather than a rule hedging against racial discrimination. I doubt that this is what Congress had in mind in amending \u017e 2 as it did, and it seems quite at odds with the discussion in Whitcomb v. Chavis, 403 U.S. 124, 149-160 (1971). Furthermore, on the facts of this case, there is no need to draw the voter\/candidate distinction. The District Court did not and reached the correct result except, in my view, with respect to District 23. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, concurring in the judgment. In this case, we are called upon to construe \u017e 2 of the Voting Rights Act of 1965, as amended June 29, 1982. Amended \u017e 2 is intended to codify the \"results\" test employed in Whitcomb v. Chavis, 403 U.S. 124 (1971), and White v. Regester, 412 U.S. 755 (1973), and to reject the \"intent\" test propounded in the plurality opinion in Mobile v. Bolden, 446 *84 U. S. 55 (1980). S. Rep. No. 97-417, pp. 27-28 (1982) (hereinafter S. Rep.). Whereas Bolden required members of a racial minority who alleged impairment of their voting strength to prove that the challenged electoral system was created or maintained with a discriminatory purpose and led to discriminatory results, under the results test, \"plaintiffs may choose to establish discriminatory results without proving any kind of discriminatory purpose.\" S. Rep., at 28. At the same time, however, \u017e 2 unequivocally disclaims the creation of a right to proportional representation. This disclaimer was essential to the compromise that resulted in passage of the amendment. See id., at 193-194 (additional views of Sen. Dole). In construing this compromise legislation, we must make every effort to be faithful to the balance Congress struck. This is not an easy task. We know that Congress intended to allow vote dilution claims to be brought under \u017e 2, but we also know that Congress did not intend to create a right to proportional representation for minority voters. There is an inherent tension between what Congress wished to do and what it wished to avoid, because any theory of vote dilution must necessarily rely to some extent on a measure of minority voting strength that makes some reference to the proportion between the minority group and the electorate at large. In addition, several important aspects of the \"results\" test had received little attention in this Court's cases or in the decisions of the Courts of Appeals employing that test on which Congress also relied. See id., at 32. Specifically, the legal meaning to be given to the concepts of \"racial bloc voting\" and \"minority voting strength\" had been left largely unaddressed by the courts when \u017e 2 was amended. The Court attempts to resolve all these difficulties today. First, the Court supplies definitions of racial bloc voting and minority voting strength that will apparently be applicable in all cases and that will dictate the structure of vote dilution litigation. Second, the Court adopts a test, based on the *85 level of minority electoral success, for determining when an electoral scheme has sufficiently diminished minority voting strength to constitute vote dilution. Third, although the Court does not acknowledge it expressly, the combination of the Court's definition of minority voting strength and its test for vote dilution results in the creation of a right to a form of proportional representation in favor of all geographically and politically cohesive minority groups that are large enough to constitute majorities if concentrated within one or more single-member districts. In so doing, the Court has disregarded the balance struck by Congress in amending \u017e 2 and has failed to apply the results test as described by this Court in Whitcomb and White.\nI In order to explain my disagreement with the Court's interpretation of \u017e 2, it is useful to illustrate the impact that alternative districting plans or types of districts typically have on the likelihood that a minority group will be able to elect candidates it prefers, and then to set out the critical elements of a vote dilution claim as they emerge in the Court's opinion. Consider a town of 1,000 voters that is governed by a council of four representatives, in which 30% of the voters are black, and in which the black voters are concentrated in one section of the city and tend to vote as a bloc. It would be possible to draw four single-member districts, in one of which blacks would constitute an overwhelming majority. The black voters in this district would be assured of electing a representative of their choice, while any remaining black voters in the other districts would be submerged in large white majorities. This option would give the minority group roughly proportional representation. Alternatively, it would usually be possible to draw four single-member districts in two of which black voters constituted much narrower majorities of about 60%. The black *86 voters in these districts would often be able to elect the representative of their choice in each of these two districts, but if even 20% of the black voters supported the candidate favored by the white minority in those districts the candidates preferred by the majority of black voters might lose. This option would, depending on the circumstances of a particular election, sometimes give the minority group more than proportional representation, but would increase the risk that the group would not achieve even roughly proportional representation. It would also usually be possible to draw four single-member districts in each of which black voters constituted a minority. In the extreme case, black voters would constitute 30% of the voters in each district. Unless approximately 30% of the white voters in this extreme case backed the minority candidate, black voters in such a district would be unable to elect the candidate of their choice in an election between only two candidates even if they unanimously supported him. This option would make it difficult for black voters to elect candidates of their choice even with significant white support, and all but impossible without such support. Finally, it would be possible to elect all four representatives in a single at-large election in which each voter could vote for four candidates. Under this scheme, white voters could elect all the representatives even if black voters turned out in large numbers and voted for one and only one candidate. To illustrate, if only four white candidates ran, and each received approximately equal support from white voters, each would receive about 700 votes, whereas black voters could cast no more than 300 votes for any one candidate. If, on the other hand, eight white candidates ran, and white votes were distributed less evenly, so that the five least favored white candidates received fewer than 300 votes while three others received 400 or more, it would be feasible for blacks to elect one representative with 300 votes even without substantial white support. If even 25% of the white voters *87 backed a particular minority candidate, and black voters voted only for that candidate, the candidate would receive a total of 475 votes, which would ensure victory unless white voters also concentrated their votes on four of the eight remaining candidates, so that each received the support of almost 70% of white voters. As these variations show, the at-large or multimember district has an inherent tendency to submerge the votes of the minority. The minority group's prospects for electoral success under such a district heavily depend on a variety of factors such as voter turnout, how many candidates run, how evenly white support is spread, how much white support is given to a candidate or candidates preferred by the minority group, and the extent to which minority voters engage in \"bullet voting\" (which occurs when voters refrain from casting all their votes to avoid the risk that by voting for their lower ranked choices they may give those candidates enough votes to defeat their higher ranked choices, see ante, at 38-39, n. 5). There is no difference in principle between the varying effects of the alternatives outlined above and the varying effects of alternative single-district plans and multimember districts. The type of districting selected and the way in which district lines are drawn can have a powerful effect on the likelihood that members of a geographically and politically cohesive minority group will be able to elect candidates of their choice. Although \u017e 2 does not speak in terms of \"vote dilution,\" I agree with the Court that proof of vote dilution can establish a violation of \u017e 2 as amended. The phrase \"vote dilution,\" in the legal sense, simply refers to the impermissible discriminatory effect that a multimember or other districting plan has when it operates \"to cancel out or minimize the voting strength of racial groups.\" White, 412 U. S., at 765. See also Fortson v. Dorsey, 379 U.S. 433, 439 (1965). This definition, however, conceals some very formidable difficulties. Is the \"voting strength\" of a racial group to be assessed solely *88 with reference to its prospects for electoral success, or should courts look at other avenues of political influence open to the racial group? Insofar as minority voting strength is assessed with reference to electoral success, how should undiluted minority voting strength be measured? How much of an impairment of minority voting strength is necessary to prove a violation of \u017e 2? What constitutes racial bloc voting and how is it proved? What weight is to be given to evidence of actual electoral success by minority candidates in the face of evidence of racial bloc voting? The Court resolves the first question summarily: minority voting strength is to be assessed solely in terms of the minority group's ability to elect candidates it prefers. Ante, at 48-49, n. 15. Under this approach, the essence of a vote dilution claim is that the State has created single-member or multimember districts that unacceptably impair the minority group's ability to elect the candidates its members prefer. In order to evaluate a claim that a particular multimember district or single-member district has diluted the minority group's voting strength to a degree that violates \u017e 2, however, it is also necessary to construct a measure of \"undiluted\" minority voting strength. \"[T]he phrase [vote dilution] itself suggests a norm with respect to which the fact of dilution may be ascertained.\" Mississippi Republican Executive Committee v. Brooks, 469 U.S. 1002, 1012 (1984) (REHNQUIST, J., dissenting from summary affirmance). Put simply, in order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it \"should\" be for minority voters to elect their preferred candidates under an acceptable system. Several possible measures of \"undiluted\" minority voting strength suggest themselves. First, a court could simply use proportionality as its guide: if the minority group constituted 30% of the voters in a given area, the court would regard the minority group as having the potential to elect 30% *89 of the representatives in that area. Second, a court could posit some alternative districting plan as a \"normal\" or \"fair\" electoral scheme and attempt to calculate how many candidates preferred by the minority group would probably be elected under that scheme. There are, as we have seen, a variety of ways in which even single-member districts could be drawn, and each will present the minority group with its own array of electoral risks and benefits; the court might, therefore, consider a range of acceptable plans in attempting to estimate \"undiluted\" minority voting strength by this method. Third, the court could attempt to arrive at a plan that would maximize feasible minority electoral success, and use this degree of predicted success as its measure of \"undiluted\" minority voting strength. If a court were to employ this third alternative, it would often face hard choices about what would truly \"maximize\" minority electoral success. An example is the scenario described above, in which a minority group could be concentrated in one completely safe district or divided among two districts in each of which its members would constitute a somewhat precarious majority. The Court today has adopted a variant of the third approach, to wit, undiluted minority voting strength means the maximum feasible minority voting strength. In explaining the elements of a vote dilution claim, the Court first states that \"the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.\" Ante, at 50. If not, apparently the minority group has no cognizable claim that its ability to elect the representatives of its choice has been impaired.[1] Second, \"the minority group must be able *90 to show that it is politically cohesive,\" that is, that a significant proportion of the minority group supports the same candidates. Ante, at 51. Third, the Court requires the minority group to \"demonstrate that the white majority votes sufficiently as a bloc to enable it \u00d4\u00c7\u00f6 in the absence of special circumstances . . . \u00d4\u00c7\u00f6 usually to defeat the minority's preferred candidate.\" Ibid. If these three requirements are met, \"the minority group demonstrates that submergence in a white multimember district impedes its ability to elect its chosen representatives.\" Ibid. That is to say, the minority group has proved vote dilution in violation of \u017e 2. The Court's definition of the elements of a vote dilution claim is simple and invariable: a court should calculate minority voting strength by assuming that the minority group is concentrated in a single-member district in which it constitutes a voting majority. Where the minority group is not large enough, geographically concentrated enough, or politically cohesive enough for this to be possible, the minority group's claim fails. Where the minority group meets these requirements, the representatives that it could elect in the hypothetical district or districts in which it constitutes a *91 majority will serve as the measure of its undiluted voting strength. Whatever plan the State actually adopts must be assessed in terms of the effect it has on this undiluted voting strength. If this is indeed the single, universal standard for evaluating undiluted minority voting strength for vote dilution purposes, the standard is applicable whether what is challenged is a multimember district or a particular single-member districting scheme. The Court's statement of the elements of a vote dilution claim also supplies an answer to another question posed above: how much of an impairment of undiluted minority voting strength is necessary to prove vote dilution. The Court requires the minority group that satisfies the threshold requirements of size and cohesiveness to prove that it will usually be unable to elect as many representatives of its choice under the challenged districting scheme as its undiluted voting strength would permit. This requirement, then, constitutes the true test of vote dilution. Again, no reason appears why this test would not be applicable to a vote dilution claim challenging single-member as well as multimember districts. This measure of vote dilution, taken in conjunction with the Court's standard for measuring undiluted minority voting strength, creates what amounts to a right to usual, roughly proportional representation on the part of sizable, compact, cohesive minority groups. If, under a particular multimember or single-member district plan, qualified minority groups usually cannot elect the representatives they would be likely to elect under the most favorable single-member districting plan, then \u017e 2 is violated. Unless minority success under the challenged electoral system regularly approximates this rough version of proportional representation, that system dilutes minority voting strength and violates \u017e 2. To appreciate the implications of this approach, it is useful to return to the illustration of a town with four council representatives given above. Under the Court's approach, if the *92 black voters who constitute 30% of the town's voting population do not usually succeed in electing one representative of their choice, then regardless of whether the town employs atlarge elections or is divided into four single-member districts, its electoral system violates \u017e 2. Moreover, if the town had a black voting population of 40%, on the Court's reasoning the black minority, so long as it was geographically and politically cohesive, would be entitled usually to elect two of the four representatives, since it would normally be possible to create two districts in which black voters constituted safe majorities of approximately 80%. To be sure, the Court also requires that plaintiffs prove that racial bloc voting by the white majority interacts with the challenged districting plan so as usually to defeat the minority's preferred candidate. In fact, however, this requirement adds little that is not already contained in the Court's requirements that the minority group be politically cohesive and that its preferred candidates usually lose. As the Court acknowledges, under its approach, \"in general, a white bloc vote that normally will defeat the combined strength of minority support plus white `crossover' votes rises to the level of legally significant white bloc voting.\" Ante, at 56. But this is to define legally significant bloc voting by the racial majority in terms of the extent of the racial minority's electoral success. If the minority can prove that it could constitute a majority in a single-member district, that it supported certain candidates, and that those candidates have not usually been elected, then a finding that there is \"legally significant white bloc voting\" will necessarily follow. Otherwise, by definition, those candidates would usually have won rather than lost. As shaped by the Court today, then, the basic contours of a vote dilution claim require no reference to most of the \"Zimmer factors\" that were developed by the Fifth Circuit to implement White's results test and which were highlighted in the Senate Report. S. Rep., at 28-29; see Zimmer v. McKeithen, *93 485 F.2d 1297 (1973) (en banc), aff'd sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976) (per curiam). If a minority group is politically and geographically cohesive and large enough to constitute a voting majority in one or more single-member districts, then unless white voters usually support the minority's preferred candidates in sufficient numbers to enable the minority group to elect as many of those candidates as it could elect in such hypothetical districts, it will routinely follow that a vote dilution claim can be made out, and the multimember district will be invalidated. There is simply no need for plaintiffs to establish \"the history of voting-related discrimination in the State or political subdivision,\" ante, at 44, or \"the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group,\" ante, at 45, or \"the exclusion of members of the minority group from candidate slating processes,\" ibid., or \"the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health,\" ibid., or \"the use of overt or subtle racial appeals in political campaigns,\" ibid., or that \"elected officials are unresponsive to the particularized needs of the members of the minority group.\" Ibid. Of course, these other factors may be supportive of such a claim, because they may strengthen a court's confidence that minority voters will be unable to overcome the relative disadvantage at which they are placed by a particular districting plan, or suggest a more general lack of opportunity to participate in the political process. But the fact remains that electoral success has now emerged, under the Court's standard, as the linchpin of vote dilution claims, and that the elements of a vote dilution claim create an entitlement to roughly proportional representation within the framework of single-member districts.\n*94 II In my view, the Court's test for measuring minority voting strength and its test for vote dilution, operating in tandem, come closer to an absolute requirement of proportional representation than Congress intended when it codified the results test in \u017e 2. It is not necessary or appropriate to decide in this case whether \u017e 2 requires a uniform measure of undiluted minority voting strength in every case, nor have appellants challenged the standard employed by the District Court for assessing undiluted minority voting strength. In this case, the District Court seems to have taken an approach quite similar to the Court's in making its preliminary assessment of undiluted minority voting strength: \"At the time of the creation of these multi-member districts, there were concentrations of black citizens within the boundaries of each that were sufficient in numbers and contiguity to constitute effective voting majorities in single-member districts lying wholly within the boundaries of the multi-member districts, which single-member districts would satisfy all constitutional requirements of population and geographical configuration.\" Gingles v. Edmisten, 590 F. Supp. 345, 358-359 (EDNC 1984). The Court goes well beyond simply sustaining the District Court's decision to employ this measure of undiluted minority voting strength as a reasonable one that is consistent with \u017e 2. In my view, we should refrain from deciding in this case whether a court must invariably posit as its measure of \"undiluted\" minority voting strength single-member districts in which minority group members constitute a majority. There is substantial doubt that Congress intended \"undiluted minority voting strength\" to mean \"maximum feasible minority voting strength.\" Even if that is the appropriate definition in some circumstances, there is no indication that Congress intended to mandate a single, universally applicable *95 standard for measuring undiluted minority voting strength, regardless of local conditions and regardless of the extent of past discrimination against minority voters in a particular State or political subdivision. Since appellants have not raised the issue, I would assume that what the District Court did here was permissible under \u017e 2, and leave open the broader question whether \u017e 2 requires this approach. What appellants do contest is the propriety of the District Court's standard for vote dilution. Appellants claim that the District Court held that \"[a]lthough blacks had achieved considerable success in winning state legislative seats in the challenged districts, their failure to consistently attain the number of seats that numbers alone would presumptively give them (i. e., in proportion to their presence in the population),\" standing alone, constituted a violation of \u017e 2. Brief for Appellants 20 (emphasis in original). This holding, appellants argue, clearly contravenes \u017e 2's proviso that \"nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.\" 42 U.S. C. \u017e 1973. I believe appellants' characterization of the District Court's holding is incorrect. In my view, the District Court concluded that there was a severe diminution in the prospects for black electoral success in each of the challenged districts, as compared to single-member districts in which blacks could constitute a majority, and that this severe diminution was in large part attributable to the interaction of the multimember form of the district with persistent racial bloc voting on the part of the white majorities in those districts. See 590 F. Supp., at 372.[2] The District Court attached great weight *96 to this circumstance as one part of its ultimate finding that \"the creation of each of the multi-member districts challenged in this action results in the black registered voters of that district being submerged as a voting minority in the district and thereby having less opportunity than do other members of the electorate to participate in the political process and to elect representatives of their choice.\" Id., at 374. But the District Court's extensive opinion clearly relies as well on a variety of the other Zimmer factors, as the Court's thorough summary of the District Court's findings indicates. See ante, at 38-41. If the District Court had held that the challenged multimember districts violated \u017e 2 solely because blacks had not consistently attained seats in proportion to their presence in the population, its holding would clearly have been inconsistent with \u017e 2's disclaimer of a right to proportional representation. Surely Congress did not intend to say, on the one hand, that members of a protected class have no right to proportional representation, and on the other, that any consistent failure to achieve proportional representation, without more, violates \u017e 2. A requirement that minority representation usually be proportional to the minority group's proportion in the population is not quite the same as a right to strict proportional representation, but it comes so close to such a right as to be inconsistent with \u017e 2's disclaimer and with the results test that is codified in \u017e 2. In the words of Senator Dole, the architect of the compromise that resulted in passage of the amendments to \u017e 2: \"The language of the subsection explicitly rejects, as did White and its progeny, the notion that members of a protected class have a right to be elected in numbers equal to their proportion of the population. The extent to which members of a protected class have been elected under the challenged practice or structure is just one factor, among the totality of circumstances to be considered, *97 and is not dispositive.\" S. Rep., at 194 (additional views of Sen. Dole). On the same reasoning, I would reject the Court's test for vote dilution. The Court measures undiluted minority voting strength by reference to the possibility of creating single-member districts in which the minority group would constitute a majority, rather than by looking to raw proportionality alone. The Court's standard for vote dilution, when combined with its test for undiluted minority voting strength, makes actionable every deviation from usual, rough proportionality in representation for any cohesive minority group as to which this degree of proportionality is feasible within the framework of single-member districts. Requiring that every minority group that could possibly constitute a majority in a single-member district be assigned to such a district would approach a requirement of proportional representation as nearly as is possible within the framework of single-member districts. Since the Court's analysis entitles every such minority group usually to elect as many representatives under a multimember district as it could elect under the most favorable single-member district scheme, it follows that the Court is requiring a form of proportional representation. This approach is inconsistent with the results test and with \u017e 2's disclaimer of a right to proportional representation. In enacting \u017e 2, Congress codified the \"results\" test this Court had employed, as an interpretation of the Fourteenth Amendment, in White and Whitcomb. The factors developed by the Fifth Circuit and relied on by the Senate Report simply fill in the contours of the \"results\" test as described in those decisions, and do not purport to redefine or alter the ultimate showing of discriminatory effect required by Whitcomb and White. In my view, therefore, it is to Whitcomb and White that we should look in the first instance in determining how great an impairment of minority voting strength is required to establish vote dilution in violation of \u017e 2. *98 The \"results\" test as reflected in Whitcomb and White requires an inquiry into the extent of the minority group's opportunities to participate in the political processes. See White, 412 U. S., at 766. While electoral success is a central part of the vote dilution inquiry, White held that to prove vote dilution, \"it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential,\" id., at 765-766, and Whitcomb flatly rejected the proposition that \"any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single member district.\" 403 U.S., at 156. To the contrary, the results test as described in White requires plaintiffs to establish \"that the political processes leading to nomination and election were not equally open to participation by the group in question \u00d4\u00c7\u00f6 that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.\" 412 U.S., at 766. BY showing both \"a history of disproportionate results\" and \"strong indicia of lack of political power and the denial of fair representation,\" the plaintiffs in White met this standard, which, as emphasized just today, requires \"a substantially greater showing of adverse effects than a mere lack of proportional representation to support a finding of unconstitutional vote dilution.\" Davis v. Bandemer, post, at 131 (plurality opinion). When Congress amended \u017e 2 it intended to adopt this \"results\" test, while abandoning the additional showing of discriminatory intent required by Bolden. The vote dilution analysis adopted by the Court today clearly bears little resemblance to the \"results\" test that emerged in Whitcomb and White. The Court's test for vote dilution, combined with its standard for evaluating \"voting potential,\" White, supra, at 766, means that any racial minority with distinctive interests must usually \"be represented in legislative halls if *99 it is numerous enough to command at least one seat and represents a minority living in an area sufficiently compact to constitute\" a voting majority in \"a single member district.\" Whitcomb, 403 U. S., at 156. Nothing in Whitcomb, White, or the language and legislative history of \u017e 2 supports the Court's creation of this right to usual, roughly proportional representation on the part of every geographically compact, politically cohesive minority group that is large enough to form a majority in one or more single-member districts. I would adhere to the approach outlined in Whitcomb and White and followed, with some elaboration, in Zimmer and other cases in the Courts of Appeals prior to Bolden. Under that approach, a court should consider all relevant factors bearing on whether the minority group has \"less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.\" 42 U.S. C. \u017e 1973 (emphasis added). The court should not focus solely on the minority group's ability to elect representatives of its choice. Whatever measure of undiluted minority voting strength the court employs in connection with evaluating the presence or absence of minority electoral success, it should also bear in mind that \"the power to influence the political process is not limited to winning elections.\" Davis v. Bandemer, post, at 132. Of course, the relative lack of minority electoral success under a challenged plan, when compared with the success that would be predicted under the measure of undiluted minority voting strength the court is employing, can constitute powerful evidence of vote dilution. Moreover, the minority group may in fact lack access to or influence upon representatives it did not support as candidates. Cf. Davis v. Bandemer, post, at 169-170 (POWELL, J., concurring in part and dissenting in part). Nonetheless, a reviewing court should be required to find more than simply that the minority group does not usually attain an undiluted measure of electoral success. The court must find that even substantial minority success will be highly infrequent *100 under the challenged plan before it may conclude, on this basis alone, that the plan operates \"to cancel out or minimize the voting strength of [the] racial grou[p].\" White, supra, at 765.\nIII Only three Justices of the Court join Part III-C of JUSTICE BRENNAN's opinion, which addresses the validity of the statistical evidence on which the District Court relied in finding racially polarized voting in each of the challenged districts. Insofar as statistical evidence of divergent racial voting patterns is admitted solely to establish that the minority group is politically cohesive and to assess its prospects for electoral success, I agree that defendants cannot rebut this showing by offering evidence that the divergent racial voting patterns may be explained in part by causes other than race, such as an underlying divergence in the interests of minority and white voters. I do not agree, however, that such evidence can never affect the overall vote dilution inquiry. Evidence that a candidate preferred by the minority group in a particular election was rejected by white voters for reasons other than those which made that candidate the preferred choice of the minority group would seem clearly relevant in answering the question whether bloc voting by white voters will consistently defeat minority candidates. Such evidence would suggest that another candidate, equally preferred by the minority group, might be able to attract greater white support in future elections. I believe Congress also intended that explanations of the reasons why white voters rejected minority candidates would be probative of the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account. In a community that is polarized along racial lines, racial hostility may bar these and other indirect avenues of political influence to a much greater extent than in a community where racial animosity is absent although the interests of racial groups diverge. Indeed, the *101 Senate Report clearly stated that one factor that could have probative value in \u017e 2 cases was \"whether there is significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.\" S. Rep., at 29. The overall vote dilution inquiry neither requires nor permits an arbitrary rule against consideration of all evidence concerning voting preferences other than statistical evidence of racial voting patterns. Such a rule would give no effect whatever to the Senate Report's repeated emphasis on \"intensive racial politics,\" on \"racial political considerations,\" and on whether \"racial politics . . . dominate the electoral process\" as one aspect of the \"racial bloc voting\" that Congress deemed relevant to showing a \u017e 2 violation. Id., at 33-34. Similarly, I agree with JUSTICE WHITE that JUSTICE BRENNAN's conclusion that the race of the candidate is always irrelevant in identifying racially polarized voting conflicts with Whitcomb and is not necessary to the disposition of this case. Ante, at 83 (concurring). In this case, as the Court grudgingly acknowledges, the District Court clearly erred in aggregating data from all of the challenged districts, and then relying on the fact that on average, 81.7% of white voters did not vote for any black candidate in the primary elections selected for study. Ante, at 59-60, n. 28. Although Senate District 22 encompasses House District 36, with that exception the districts at issue in this case are distributed throughout the State of North Carolina. White calls for \"an intensely local appraisal of the design and impact of the . . . multimember district,\" 412 U.S., at 769-770, and racial voting statistics from one district are ordinarily irrelevant in assessing the totality of the circumstances in another district. In view of the specific evidence from each district that the District Court also considered, however, I cannot say that its conclusion that there was severe racial bloc voting was clearly erroneous with regard to any of the challenged districts. Except in House District 23, where racial bloc voting did not prevent sustained and virtually *102 proportional minority electoral success, I would accordingly leave undisturbed the District Court's decision to give great weight to racial bloc voting in each of the challenged districts.\nIV Having made usual, roughly proportional success the sole focus of its vote dilution analysis, the Court goes on to hold that proof that an occasional minority candidate has been elected does not foreclose a \u017e 2 claim. But JUSTICE BRENNAN, joined by JUSTICE WHITE, concludes that \"persistent proportional representation\" will foreclose a \u017e 2 claim unless the plaintiffs prove that this \"sustained success does not accurately reflect the minority group's ability to elect its preferred representatives.\" Ante, at 77. I agree with JUSTICE BRENNAN that consistent and sustained success by candidates preferred by minority voters is presumptively inconsistent with the existence of a \u017e 2 violation. Moreover, I agree that this case presents no occasion for determining what would constitute proof that such success did not accurately reflect the minority group's actual voting strength in a challenged district or districts. In my view, the District Court erred in assessing the extent of black electoral success in House District 39 and Senate District 22, as well as in House District 23, where the Court acknowledges error. As the evidence summarized by the Court in table form shows, ante, at 82, Appendix B, the degree of black electoral success differed widely in the seven originally contested districts. In House District 8 and Senate District 2, neither of which is contested in this Court, no black candidate had ever been elected to the offices in question. In House District 21 and House District 36, the only instances of black electoral success came in the two most recent elections, one of which took place during the pendency of this litigation. By contrast, in House District 39 and Senate District 22, black successes, although intermittent, dated back to 1974, and a black candidate had been elected in each *103 of these districts in three of the last five elections. Finally, in House District 23 a black candidate had been elected in each of the last six elections. The District Court, drawing no distinctions among these districts for purposes of its findings, concluded that \"[t]he overall results achieved to date at all levels of elective office are minimal in relation to the percentage of blacks in the total population.\" 590 F. Supp., at 367. The District Court clearly erred to the extent that it considered electoral success in the aggregate, rather than in each of the challenged districts, since, as the Court states, \"[t]he inquiry into the existence of vote dilution . . . is district-specific.\" Ante, at 59, n. 28. The Court asserts that the District Court was free to regard the results of the 1982 elections with suspicion and to decide \"on the basis of all the relevant circumstances to accord greater weight to blacks' relative lack of success over the course of several recent elections,\" ante, at 76, but the Court does not explain how this technique would apply in Senate District 22, where a black candidate was elected in three consecutive elections from 1974 to 1978, but no black candidate was elected in 1982, or in House District 39, where black candidates were elected in 1974 and 1976 as well as in 1982. Contrary to what the District Court thought, see 590 F. Supp., at 367, these pre-1982 successes, which were proportional or nearly proportional to black population in these three multimember districts, certainly lend some support for a finding that black voters in these districts enjoy an equal opportunity to participate in the political process and to elect representatives of their choice. Despite this error, I agree with the Court's conclusion that, except in House District 23, minority electoral success was not sufficiently frequent to compel a finding of equal opportunity to participate and elect. The District Court found that \"in each of the challenged districts racial polarization in voting presently exists to a substantial or severe degree, and . . . in each district it presently operates to *104 minimize the voting strength of black voters.\" Id., at 372. I cannot say that this finding was clearly erroneous with respect to House District 39 or Senate District 22, particularly when taken together with the District Court's findings concerning the other Zimmer factors, and hence that court's ultimate conclusion of vote dilution in these districts is adequately supported. This finding, however, is clearly erroneous with respect to House District 23. Blacks constitute 36.3% of the population in that district and 28.6% of the registered voters. In each of the six elections since 1970 one of the three representatives from this district has been a black. There is no finding, or any reason even to suspect, that the successful black candidates in District 23 did not in fact represent the interests of black voters, and the District Court did not find that black success in previous elections was aberrant. Zimmer's caveat against necessarily foreclosing a vote dilution claim on the basis of isolated black successes, 485 F.2d, at 1307; see S. Rep., at 29, n. 115, cannot be pressed this far. Indeed, the 23 Court of Appeals decisions on which the Senate Report relied, and which are the best evidence of the scope of this caveat, contain no example of minority electoral success that even remotely approximates the consistent, decade-long pattern in District 23. See, e. g., Turner v. McKeithen, 490 F.2d 191 (CA5 1973) (no black candidates elected); Wallace v. House, 515 F.2d 619 (CA5 1975) (one black candidate elected), vacated on other grounds, 425 U.S. 947 (1976). I do not propose that consistent and virtually proportional minority electoral success should always, as a matter of law, bar finding a \u017e 2 violation. But, as a general rule, such success is entitled to great weight in evaluating whether a challenged electoral mechanism has, on the totality of the circumstances, operated to deny black voters an equal opportunity to participate in the political process and to elect representatives of their choice. With respect to House District 23, the District Court's failure to accord black electoral success such *105 weight was clearly erroneous, and the District Court identified no reason for not giving this degree of success preclusive effect. Accordingly, I agree with JUSTICE BRENNAN that appellees failed to establish a violation of \u017e 2 in District 23.\nV When members of a racial minority challenge a multimember district on the grounds that it dilutes their voting strength, I agree with the Court that they must show that they possess such strength and that the multimember district impairs it. A court must therefore appraise the minority group's undiluted voting strength in order to assess the effects of the multimember district. I would reserve the question of the proper method or methods for making this assessment. But once such an assessment is made, in my view the evaluation of an alleged impairment of voting strength requires consideration of the minority group's access to the political processes generally, not solely consideration of the chances that its preferred candidates will actually be elected. Proof that white voters withhold their support from minority-preferred candidates to an extent that consistently ensures their defeat is entitled to significant weight in plaintiffs' favor. However, if plaintiffs direct their proof solely towards the minority group's prospects for electoral success, they must show that substantial minority success will be highly infrequent under the challenged plan in order to establish that the plan operates to \"cancel out or minimize\" their voting strength. White, 412 U. S., at 765. Compromise is essential to much if not most major federal legislation, and confidence that the federal courts will enforce such compromises is indispensable to their creation. I believe that the Court today strikes a different balance than Congress intended to when it codified the results test and disclaimed any right to proportional representation under \u017e 2. For that reason, I join the Court's judgment but not its opinion. *106 JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring in part and dissenting in part. In my opinion, the findings of the District Court, which the Court fairly summarizes, ante, at 37-41, 52-54, and n. 23, 59-61, and nn. 28 and 29, adequately support the District Court's judgment concerning House District 23 as well as the balance of that judgment. I, of course, agree that the election of one black candidate in each election since 1972 provides significant support for the State's position. The notion that this evidence creates some sort of a conclusive, legal presumption, ante, at 75-76, is not, however, supported by the language of the statute or by its legislative history.[1] I therefore cannot agree with the Court's view that the District Court committed error by failing to apply a rule of law that emerges today without statutory support. The evidence of candidate success in District 23 is merely one part of an extremely large record which the District Court carefully considered before making its ultimate findings of fact, all of which should be upheld under a normal application of the \"clearly erroneous\" standard that the Court traditionally applies.[2] The Court identifies the reason why the success of one black candidate in the elections in 1978, 1980, and 1982 is not *107 inconsistent with the District Court's ultimate finding concerning House District 23.[3] The fact that one black candidate was also elected in the 1972, 1974, and 1976 elections, ante, at 82, Appendix B, is not sufficient, in my opinion, to overcome the additional findings that apply to House District 23, as well as to other districts in the State for each of those years. The Court accurately summarizes those findings: \"The District Court in this case carefully considered the totality of the circumstances and found that in each district racially polarized voting; the legacy of official discrimination in voting matters, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the multimember districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice. It found that the success a few black candidates have enjoyed in these districts is too recent, too limited, and, with regard to the 1982 elections, perhaps too aberrational, to disprove its conclusion.\" Ante, at 80. To paraphrase the Court's conclusion about the other districts, ibid., I cannot say that the District Court, composed of local judges who are well acquainted with the political realities of the State, clearly erred in concluding that use of a multimember electoral structure has caused black voters in House District 23 to have less opportunity than white voters to elect representatives of their choice.[4] Accordingly, I concur *108 in the Court's opinion except Part IV-B and except insofar as it explains why it reverses the judgment respecting House District 23. NOTES [*] Daniel J. Popeo and George C. Smith filed a brief for the Washington Legal Foundation as amicus curiae urging reversal. [1] Appellees challenged Senate District No. 2, which consisted of the whole of Northampton, Hertford, Gates, Bertie, and Chowan Counties, and parts of Washington, Martin, Halifax, and Edgecombe Counties. [2] Appellees challenged the following multimember districts: Senate No. 22 (Mecklenburg and Cabarrus Counties \u00d4\u00c7\u00f6 four members), House No. 36 (Mecklenburg County \u00d4\u00c7\u00f6 eight members), House No. 39 (part of Forsyth County \u00d4\u00c7\u00f6 five members), House No. 23 (Durham County \u00d4\u00c7\u00f6 three members), House No. 21 (Wake County \u00d4\u00c7\u00f6 six members), and House No. 8 (Wilson, Nash, and Edgecombe Counties \u00d4\u00c7\u00f6 four members). [3] Appellants initiated this action in September 1981, challenging the North Carolina General Assembly's July 1981 redistricting. The history of this action is recounted in greater detail in the District Court's opinion in this case, Gingles v. Edmisten, 590 F. Supp. 345, 350-358 (EDNC 1984). It suffices here to note that the General Assembly revised the 1981 plan in April 1982 and that the plan at issue in this case is the 1982 plan. [4] These factors were derived from the analytical framework of White v. Regester, 412 U.S. 755 (1973), as refined and developed by the lower courts, in particular by the Fifth Circuit in Zimmer v. McKeithen, 485 F.2d 1297 (1973) (en banc), aff'd sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976) (per curiam). S. Rep., at 28, n. 113. [5] Bullet (single-shot) voting has been described as follows: \" `Consider [a] town of 600 whites and 400 blacks with an at-large election to choose four council members. Each voter is able to cast four votes. Suppose there are eight white candidates, with the votes of the whites split among them approximately equally, and one black candidate, with all the blacks voting for him and no one else. The result is that each white candidate receives about 300 votes and the black candidate receives 400 votes. The black has probably won a seat. This technique is called single-shot voting. Single-shot voting enables a minority group to win some at-large seats if it concentrates its vote behind a limited number of candidates and if the vote of the majority is divided among a number of candidates.' \" City of Rome v. United States, 446 U.S. 156, 184, n. 19 (1980), quoting United States Commission on Civil Rights, The Voting Rights Act: Ten Years After, pp. 206-207 (1975). [6] Designated (or numbered) seat schemes require a candidate for election in multimember districts to run for specific seats, and can, under certain circumstances, frustrate bullet voting. See, e. g., City of Rome, supra, at 185, n. 21. [7] The United States urges this Court to give little weight to the Senate Report, arguing that it represents a compromise among conflicting \"factions,\" and thus is somehow less authoritative than most Committee Reports. Brief for United States as Amicus Curiae 8, n. 12, 24, n. 49. We are not persuaded that the legislative history of amended \u017e 2 contains anything to lead us to conclude that this Senate Report should be accorded little weight. We have repeatedly recognized that the authoritative source for legislative intent lies in the Committee Reports on the bill. See, e. g., Garcia v. United States, 469 U.S. 70, 76, and n. 3 (1984); Zuber v. Allen, 396 U.S. 168, 186 (1969). [8] The Senate Report states that amended \u017e 2 was designed to restore the \"results test\" \u00d4\u00c7\u00f6 the legal standard that governed voting discrimination cases prior to our decision in Mobile v. Bolden, 446 U.S. 55 (1980). S. Rep., at 15-16. The Report notes that in pre-Bolden cases such as White v. Regester, 412 U.S. 755 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973), plaintiffs could prevail by showing that, under the totality of the circumstances, a challenged election law or procedure had the effect of denying a protected minority an equal chance to participate in the electoral process. Under the \"results test,\" plaintiffs are not required to demonstrate that the challenged electoral law or structure was designed or maintained for a discriminatory purpose. S. Rep., at 16. [9] The Senate Committee found that \"voting practices and procedures that have discriminatory results perpetuate the effects of past purposeful discrimination.\" Id., at 40 (footnote omitted). As the Senate Report notes, the purpose of the Voting Rights Act was \" `not only to correct an active history of discrimination, the denying to Negroes of the right to register and vote, but also to deal with the accumulation of discrimination.' \" Id., at 5 (quoting 111 Cong. Rec. 8295 (1965) (remarks of Sen. Javits)). [10] Section 2 prohibits all forms of voting discrimination, not just vote dilution. S. Rep., at 30. [11] Dilution of racial minority group voting strength may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority. Engstrom & Wildgen, Pruning Thorns from the Thicket: An Empirical Test of the Existence of Racial Gerrymandering, 2 Legis. Stud. Q. 465, 465-466 (1977) (hereinafter Engstrom & Wildgen). See also Derfner, Racial Discrimination and the Right to Vote, 26 Vand. L. Rev. 523, 553 (1973) (hereinafter Derfner); F. Parker, Racial Gerrymandering and Legislative Reapportionment (hereinafter Parker), in Minority Vote Dilution 86-100 (Davidson ed., 1984) (hereinafter Minority Vote Dilution). [12] The claim we address in this opinion is one in which the plaintiffs alleged and attempted to prove that their ability to elect the representatives of their choice was impaired by the selection of a multimember electoral structure. We have no occasion to consider whether \u017e 2 permits, and if it does, what standards should pertain to, a claim brought by a minority group, that is not sufficiently large and compact to constitute a majority in a single-member district, alleging that the use of a multimember district impairs its ability to influence elections.\nWe note also that we have no occasion to consider whether the standards we apply to respondents' claim that multimember districts operate to dilute the vote of geographically cohesive minority groups that are large enough to constitute majorities in single-member districts and that are contained within the boundaries of the challenged multimember districts, are fully pertinent to other sorts of vote dilution claims, such as a claim alleging that the splitting of a large and geographically cohesive minority between two or more multimember or single-member districts resulted in the dilution of the minority vote. [13] Commentators are in widespread agreement with this conclusion. See, e. g., Berry & Dye, The Discriminatory Effects of At-Large Elections, 7 Fla. St. U. L. Rev. 85 (1979) (hereinafter Berry & Dye); Blacksher & Menefee, From Reynolds v. Sims to City of Mobile v. Bolden, 34 Hastings L. J. 1 (1982) (hereinafter Blacksher & Menefee); Bonapfel, Minority Challenges to At-Large Elections: The Dilution Problem, 10 Ga. L. Rev. 353 (1976) (hereinafter Bonapfel); Butler, Constitutional and Statutory Challenges to Election Structures: Dilution and the Value of the Right to Vote, 42 La. L. Rev. 851 (1982) (hereinafter Butler); Carpeneti, Legislative Apportionment: Multimember Districts and Fair Representation, 120 U. Pa. L. Rev. 666 (1972) (hereinafter Carpeneti); Davidson & Korbel, At-Large Elections and Minority Group Representation, in Minority Vote Dilution 65; Derfner; B. Grofman, Alternatives to Single-Member Plurality Districts: Legal and Empirical Issues (hereinafter Grofman, Alternatives), in Representation and Redistricting Issues 107 (B. Grofman, R. Lijphart, H. McKay, & H. Scarrow eds., 1982) (hereinafter Representation and Redistricting Issues); Hartman, Racial Vote Dilution and Separation of Powers, 50 Geo. Wash. L. Rev. 689 (1982); Jewell, The Consequences of Single-and Multimember Districting, in Representation and Redistricting Issues 129 (1982) (hereinafter Jewell); Jones, The Impact of Local Election Systems on Political Representation, 11 Urb. Aff. Q. 345 (1976); Karnig, Black Resources and City Council Representation, 41 J. Pol. 134 (1979); Karnig, Black Representation on City Councils, 12 Urb. Aff. Q. 223 (1976); Parker 87-88. [14] Not only does \"[v]oting along racial lines\" deprive minority voters of their preferred representative in these circumstances, it also \"allows those elected to ignore [minority] interests without fear of political consequences,\" Rogers v. Lodge, 458 U. S., at 623, leaving the minority effectively unrepresented. See, e. g., Grofman, Should Representatives Be Typical of Their Constituents?, in Representation and Redistricting Issues 97; Parker 108. [15] Under a \"functional\" view of the political process mandated by \u017e 2, S. Rep., at 30, n. 120, the most important Senate Report factors bearing on \u017e 2 challenges to multimember districts are the \"extent to which minority group members have been elected to public office in the jurisdiction\" and the \"extent to which voting in the elections of the state or political subdivision is racially polarized.\" Id., 28-29. If present, the other factors, such as the lingering effects of past discrimination, the use of appeals to racial bias in election campaigns, and the use of electoral devices which enhance the dilutive effects of multimember districts when substantial white bloc voting exists \u00d4\u00c7\u00f6 for example antibullet voting laws and majority vote requirements, are supportive of, but not essential to, a minority voter's claim.\nIn recognizing that some Senate Report factors are more important to multimember district vote dilution claims than others, the Court effectuates the intent of Congress. It is obvious that unless minority group members experience substantial difficulty electing representatives of their choice, they cannot prove that a challenged electoral mechanism impairs their ability \"to elect.\" \u017e 2(b). And, where the contested electoral structure is a multimember district, commentators and courts agree that in the absence of significant white bloc voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters. See, e. g., McMillan v. Escambia County, Fla., 748 F.2d 1037, 1043 (CA5 1984); United States v. Marengo County Comm'n, 731 F.2d 1546, 1566 (CA11), appeal dism'd and cert. denied, 469 U.S. 976 (1984); Nevett v. Sides, 571 F.2d 209, 223 (CA5 1978), cert. denied, 446 U.S. 951 (1980); Johnson v. Halifax County, 594 F. Supp. 161, 170 (EDNC 1984); Blacksher & Menefee; Engstrom & Wildgen 469; Parker 107. Consequently, if difficulty in electing and white bloc voting are not proved, minority voters have not established that the multimember structure interferes with their ability to elect their preferred candidates. Minority voters may be able to prove that they still suffer social and economic effects of past discrimination, that appeals to racial bias are employed in election campaigns, and that a majority vote is required to win a seat, but they have not demonstrated a substantial inability to elect caused by the use of a multimember district. By recognizing the primacy of the history and extent of minority electoral success and of racial bloc voting, the Court simply requires that \u017e 2 plaintiffs prove their claim before they may be awarded relief. [16] In this case appellees allege that within each contested multimember district there exists a minority group that is sufficiently large and compact to constitute a single-member district. In a different kind of case, for example a gerrymander case, plaintiffs might allege that the minority group that is sufficiently large and compact to constitute a single-member district has been split between two or more multimember or single-member districts, with the effect of diluting the potential strength of the minority vote. [17] The reason that a minority group making such a challenge must show, as a threshold matter, that it is sufficiently large and geographically compact to constitute a majority in a single-member district is this: Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice. The single-member district is generally the appropriate standard against which to measure minority group potential to elect because it is the smallest political unit from which representatives are elected. Thus, if the minority group is spread evenly throughout a multimember district, or if, although geographically compact, the minority group is so small in relation to the surrounding white population that it could not constitute a majority in a single-member district, these minority voters cannot maintain that they would have been able to elect representatives of their choice in the absence of the multimember electoral structure. As two commentators have explained: \"To demonstrate [that minority voters are injured by at-large elections], the minority voters must be sufficiently concentrated and politically cohesive that a putative districting plan would result in districts in which members of a racial minority would constitute a majority of the voters, whose clear electoral choices are in fact defeated by at-large voting. If minority voters' residences are substantially integrated throughout the jurisdiction, the at-large district cannot be blamed for the defeat of minority-supported candidates . . . . [This standard] thus would only protect racial minority votes from diminution proximately caused by the districting plan; it would not assure racial minorities proportional representation.\" Blacksher & Menefee 55-56 (footnotes omitted; emphasis added). [18] The terms \"racially polarized voting\" and \"racial bloc voting\" are used interchangeably throughout this opinion. [19] The 1982 reapportionment plan left essentially undisturbed the 1971 plan for five of the original six contested multimember districts. House District 39 alone was slightly modified. Brief for Appellees 8. [20] The District Court found both methods standard in the literature for the analysis of racially polarized voting. 590 F. Supp., at 367, n. 28, 368, n. 32. See also Engstrom & McDonald, Quantitative Evidence in Vote Dilution Litigation: Political Participation and Polarized Voting, 17 Urb. Law. 369 (Summer 1985); Grofman, Migalski, & Noviello, The \"Totality of Circumstances Test\" in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective, 7 Law & Policy 199 (Apr. 1985) (hereinafter Grofman, Migalski, & Noviello). [21] The court used the term \"racial polarization\" to describe this correlation. It adopted Dr. Grofman's definition \u00d4\u00c7\u00f6 \"racial polarization\" exists where there is \"a consistent relationship between [the] race of the voter and the way in which the voter votes,\" Tr. 160, or to put it differently, where \"black voters and white voters vote differently.\" Id., at 203. We, too, adopt this definition of \"racial bloc\" or \"racially polarized\" voting. See infra, at 55-58. [22] The court found that the data reflected positive relationships and that the correlations did not happen by chance. 590 F. Supp., at 368, and n. 30. See also D. Barnes & J. Conley, Statistical Evidence in Litigation 32-34 (1986); Fisher, Multiple Regression in Legal Proceedings, 80 Colum. L. Rev. 702, 716-720 (1980); Grofman, Migalski, & Noviello 206. [23] The two exceptions were the 1982 State House elections in Districts 21 and 23. 590 F. Supp., at 368, n. 31. [24] This list of factors is illustrative, not comprehensive. [25] The number of elections that must be studied in order to determine whether voting is polarized will vary according to pertinent circumstances. One important circumstance is the number of elections in which the minority group has sponsored candidates. Where a minority group has never been able to sponsor a candidate, courts must rely on other factors that tend to prove unequal access to the electoral process. Similarly, where a minority group has begun to sponsor candidates just recently, the fact that statistics from only one or a few elections are available for examination does not foreclose a vote dilution claim. [26] This list of special circumstances is illustrative, not exclusive. [27] The trial court did not actually employ the term \"legally significant.\" At times it seems to have used \"substantive significance\" as Dr. Grofman did, to describe polarization severe enough to result in the selection of different candidates in racially separate electorates. At other times, however, the court used the term \"substantively significant\" to refer to its ultimate determination that racially polarized voting in these districts is sufficiently severe to be relevant to a \u017e 2 claim. [28] In stating that 81.7% of white voters did not vote for any black candidates in the primary election and that two-thirds of white voters did not vote for black candidates in general elections, the District Court aggregated data from all six challenged multimember districts, apparently for ease of reporting. The inquiry into the existence of vote dilution caused by submergence in a multimember district is district specific. When considering several separate vote dilution claims in a single case, courts must not rely on data aggregated from all the challenged districts in concluding that racially polarized voting exists in each district. In the instant case, however, it is clear from the trial court's tabulated findings and from the exhibits that were before it, 1 App., Exs. 2-10, that the court relied on data that were specific to each individual district in concluding that each district experienced legally significant racially polarized voting. [29] For example, the court found that incumbency aided a successful black candidate in the 1978 primary in Senate District 22. The court also noted that in House District 23, a black candidate who gained election in 1978, 1980, and 1982, ran uncontested in the 1978 general election and in both the primary and general elections in 1980. In 1982 there was no Republican opposition, a fact the trial court interpreted to mean that the general election was for all practical purposes unopposed. Moreover, in the 1982 primary, there were only two white candidates for three seats, so that one black candidate had to succeed. Even under this condition, the court remarked, 63% of white voters still refused to vote for the black incumbent \u00d4\u00c7\u00f6 who was the choice of 90% of the blacks. In House District 21, where a black won election to the six-member delegation in 1980 and 1982, the court found that in the relevant primaries approximately 60% to 70% of white voters did not vote for the black candidate, whereas approximately 80% of blacks did. The court additionally observed that although winning the Democratic primary in this district is historically tantamount to election, 55% of whites declined to vote for the Democratic black candidate in the general election. [30] The court noted that in the 1982 primary held in House District 36, out of a field of eight, the successful black candidate was ranked first by black voters, but seventh by whites. Similarly, the court found that the two blacks who won seats in the five-member delegation from House District 39 were ranked first and second by black voters, but seventh and eighth by white voters. [31] Appellants argue that plaintiffs must establish that race was the primary determinant of voter behavior as part of their prima facie showing of polarized voting; the United States suggests that plaintiffs make out a prima facie case merely by showing a correlation between race and the selection of certain candidates, but that defendants should be able to rebut by showing that factors other than race were the principal causes of voters' choices. We reject both arguments. [32] The Fifth Circuit cases on which North Carolina and the United States rely for their position are equally ambiguous. See Lee County Branch of NAACP v. Opelika, 748 F.2d 1473, 1482 (1984); Jones v. Lubbock, 730 F.2d 233, 234 (1984) (Higginbotham, J., concurring). [33] It is true, as we have recognized previously, that racial hostility may often fuel racial bloc voting. United Jewish Organizations v. Carey, 430 U.S. 144, 166 (1977); Rogers v. Lodge, 458 U. S., at 623. But, as we explain in this decision, the actual motivation of the voter has no relevance to a vote dilution claim. This is not to suggest that racial bloc voting is race neutral; because voter behavior correlates with race, obviously it is not. It should be remembered, though, as one commentator has observed, that \"[t]he absence of racial animus is but one element of race neutrality.\" Note, Geometry and Geography 208. [34] The Senate Report rejected the argument that the words \"on account of race,\" contained in \u017e 2(a), create any requirement of purposeful discrimination. \"[I]t is patently [clear] that Congress has used the words `on account of race or color' in the Act to mean `with respect to' race or color, and not to connote any required purpose of racial discrimination.\" S. Rep., at 27-28, n. 109. [35] The relevant results of the 1982 General Assembly election are as follows. House District 21, in which blacks make up 21.8% of the population, elected one black to the six-person House delegation. House District 23, in which blacks constitute 36.3% of the population, elected one black to the three-person House delegation. In House District 36, where blacks constitute 26.5% of the population, one black was elected to the eight-member delegation. In House District 39, where 25.1% of the population is black, two blacks were elected to the five-member delegation. In Senate District 22, where blacks constitute 24.3% of the population, no black was elected to the Senate in 1982. [36] The United States points out that, under a substantially identical predecessor to the challenged plan, see n. 15, supra, House District 21 elected a black to its six-member delegation in 1980, House District 39 elected a black to its five-member delegation in 1974 and 1976, and Senate District 22 had a black Senator between 1975 and 1980. [37] See also Zimmer v. McKeithen, 485 F. 2d, at 1307 (\"[W]e cannot endorse the view that the success of black candidates at the polls necessarily forecloses the possibility of dilution of the black vote. Such success might, on occasion, be attributable to the work of politicians, who, apprehending that the support of a black candidate would be politically expedient, campaign to insure his election. Or such success might be attributable to political support motivated by different considerations \u00d4\u00c7\u00f6 namely that election of a black candidate will thwart successful challenges to electoral schemes on dilution grounds. In either situation, a candidate could be elected despite the relative political backwardness of black residents in the electoral district\"). [38] We have no occasion in this case to decide what types of special circumstances could satisfactorily demonstrate that sustained success does not accurately reflect the minority's ability to elect its preferred representatives. [1] I express no view as to whether the ability of a minority group to constitute a majority in a single-member district should constitute a threshold requirement for a claim that the use of multimember districts impairs the ability of minority voters to participate in the political processes and to elect representatives of their choice. Because the plaintiffs in this case would meet that requirement, if indeed it exists, I need not decide whether it is imposed by \u017e 2. I note, however, the artificiality of the Court's distinction between claims that a minority group's \"ability to elect the representatives of [its] choice\" has been impaired and claims that \"its ability to influence elections\" has been impaired. Ante, at 46-47, n. 12. It is true that a minority group that could constitute a majority in a single-member district ordinarily has the potential ability to elect representatives without white support, and that a minority that could not constitute such a majority ordinarily does not. But the Court recognizes that when the candidates preferred by a minority group are elected in a multimember district, the minority group has elected those candidates, even if white support was indispensable to these victories. On the same reasoning, if a minority group that is not large enough to constitute a voting majority in a single-member district can show that white support would probably be forthcoming in some such district to an extent that would enable the election of the candidates its members prefer, that minority group would appear to have demonstrated that, at least under this measure of its voting strength, it would be able to elect some candidates of its choice. [2] At times, the District Court seems to have looked to simple proportionality rather than to hypothetical single-member districts in which black voters would constitute a majority. See, e. g., 590 F. Supp., at 367. No-where in its opinion, however, did the District Court state that \u017e 2 requires that minority groups consistently attain the level of electoral success that would correspond with their proportion of the total or voting population. [1] See ante, at 75 (\"Section 2(b) provides that `[t]he extent to which members of a protected class have been elected to office . . . is one circumstance which may be considered.' 42 U.S. C. \u017e 1973(b) . . . However, the Senate Report expressly states that `the election of a few minority candidates does not \"necessarily foreclose the possibility of dilution of the black vote,\" ' noting that if it did, `the possibility exists that the majority citizens might evade [\u017e 2] by manipulating the election of a \"safe\" minority candidate.'. . . The Senate Committee decided, instead, to ` \"require an independent consideration of the record\" ' \") (internal citations omitted). [2] See ante, at 79 (\"[T]he application of the clearly-erroneous standard to ultimate findings of vote dilution preserves the benefit of the trial court's particular familiarity with the indigenous political reality without endangering the rule of law\"). [3] See ante, at 52-54, and n. 23, 60, n. 29, 75-76. [4] Even under the Court's analysis, the decision simply to reverse \u00d4\u00c7\u00f6 without a remand \u00d4\u00c7\u00f6 is mystifying. It is also extremely unfair. First, the Court does not give appellees an opportunity to address the new legal standard that the Court finds decisive. Second, the Court does not even bother to explain the contours of that standard, and why it was not satisfied in this case. Cf. ante, at 77, n. 38 (\"We have no occasion in this case to decide what types of special circumstances could satisfactorily demonstrate that sustained success does not accurately reflect the minority's ability to elect its preferred representatives\"). Finally, though couched as a conclusion about a \"matter of law,\" ante, at 77, the Court's abrupt entry of judgment for appellants on District 23 reflects an unwillingness to give the District Court the respect it is due, particularly when, as in this case, the District Court has a demonstrated knowledge and expertise of the entire context that Congress directed it to consider.","meta":{"dup_signals":{"dup_doc_count":1031,"dup_dump_count":60,"dup_details":{"2024-22":1,"2024-10":2,"2015-18":46,"2015-11":50,"2015-06":48,"2014-10":25,"2013-48":33,"2013-20":20,"2023-40":1,"2023-14":1,"2022-33":2,"2022-21":3,"2021-49":1,"2021-39":3,"2021-25":1,"2021-10":1,"2021-04":1,"2020-34":1,"2020-29":1,"2020-24":1,"2020-16":2,"2020-10":1,"2019-43":1,"2019-39":1,"2019-35":1,"2019-22":1,"2019-13":1,"2019-09":1,"2018-47":1,"2018-22":2,"2018-09":1,"2018-05":1,"2017-47":1,"2017-39":1,"2017-34":1,"2017-26":1,"2017-17":1,"2017-09":41,"2017-04":1,"2016-50":1,"2016-44":1,"2016-40":1,"2016-36":1,"2016-30":1,"2016-18":1,"2016-07":47,"2015-48":42,"2015-40":30,"2015-35":42,"2015-32":47,"2015-27":34,"2015-22":4,"2015-14":41,"2014-52":43,"2014-49":58,"2014-42":79,"2014-41":69,"2014-35":61,"2014-23":63,"2014-15":62}}},"subset":"freelaw"}
{"text":"330 U.S. 75 (1947) UNITED PUBLIC WORKERS OF AMERICA (C.I.O.) ET AL. v. MITCHELL ET AL. No. 20. Supreme Court of United States. Argued December 3, 1945. Reargued October 17, 1946. Decided February 10, 1947. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA. *77 Lee Pressman argued the cause for appellants. With him on the brief were Frank Donner and Milton V. Freeman. Ralph F. Fuchs argued the cause for appellees. With him on the brief were Solicitor General McGrath, Assistant Attorney General Sonnett, David L. Kreeger and Abraham J. Harris. *78 MR. JUSTICE REED delivered the opinion of the Court. The Hatch Act,[*] enacted in 1940, declares unlawful certain specified political activities of federal employees.[1] Section 9 forbids officers and employees in the executive branch of the Federal Government, with exceptions, from taking \"any active part in political management or in political campaigns.\"[2] Section 15 declares that the activities *79 theretofore determined by the United States Civil Service Commission to be prohibited to employees in the classified civil service of the United States by the Civil Service Rules shall be deemed to be prohibited to federal employees covered by the Hatch Act.[3] These sections of the Act cover all federal officers and employees whether in the classified civil service or not and a penalty of dismissal from employment is imposed for violation. There is no designation of a single governmental agency for its enforcement. For many years before the Hatch Act the Congress had authorized the exclusion of federal employees in the competitive classified service from active participation in political management and political campaigns.[4] In June, 1938, *80 the congressional authorization for exclusion had been made more effective by a Civil Service Commission disciplinary rule.[5] That power to discipline members of the competitive classified civil service continues in the Commission under the Hatch Act by virtue of the present applicability of the Executive Order No. 8705, March 5, 1941. The applicable Civil Service Commission rules are *81 printed in the margin.[6] The only change in the Civil Service Rules relating to political activity, caused by the Hatch Act legislation, that is of significance in this case is the elimination on March 5, 1941, of the word \"privately\" from the phrase \"to express privately their opinions.\" This limitation to private expression had regulated classified personnel since 1907.[7] The present appellants sought an injunction before a statutory three-judge district court of the District of Columbia *82 against appellees, members of the United States Civil Service Commission, to prohibit them from enforcing against appellants the provisions of the second sentence of \u00a7 9 (a) of the Hatch Act for the reason that the sentence is repugnant to the Constitution of the United States.[8] A declaratory judgment of the unconstitutionality of the sentence was also sought.[9] The sentence referred to reads, \"No officer or employee in the executive branch of the Federal Government . . . shall take any active part in political management or in political campaigns.\" Various individual employees of the federal executive civil service and the United Public Workers of America,[10] a labor union with these and other executive employees as members, as a representative of all its members, joined in the suit. It is alleged that the individuals desire to engage in acts of political management and in political campaigns. Their purposes are as stated in the excerpt from the complaint set out in the margin.[11] From the *83 affidavits it is plain, and we so assume, that these activities will be carried on completely outside of the hours of employment. Appellants challenge the second sentence of \u00a7 9 (a) as unconstitutional for various reasons. They are set out below in the language of the complaint.[12] None of the appellants, except George P. Poole, has violated the provisions of the Hatch Act. They wish to act contrary to its provisions and those of \u00a7 1 of the Civil Service Rules and desire a declaration of the legally permissible *84 limits of regulation. Defendants moved to dismiss the complaint for lack of a justiciable case or controversy. The District Court determined that each of these individual appellants had an interest in their claimed privilege of engaging in political activities, sufficient to give them a right to maintain this suit. United Federal Workers of America (C.I.O.) v. Mitchell, 56 F. Supp. 621, 624. The District Court further determined that the questioned provision of the Hatch Act was valid and that the complaint therefore failed to state a cause of action. It accordingly dismissed the complaint and granted summary judgment to defendants. First. The judgment of the District Court was entered on September 26, 1944. An order was duly entered on October 26, 1944, allowing an appeal. 28 U.S.C. \u00a7 380a. The same section of the statutes provides: \"In the event that an appeal is taken under this section, the record shall be made up and the case docketed in the Supreme Court of the United States within sixty days from the time such appeal is allowed, under such rules as may be prescribed by the proper courts.\" This appeal was not docketed in this Court until February 2, 1945, a date after the return date of the order under \u00a7 380a. Thereafter the Government suggested a lack of jurisdiction in this Court to consider the appeal because of the failure of appellants to docket the appeal in time. We postponed consideration of our jurisdiction over this appeal to the hearing. We proceed now to a disposition of this question. To comply with the suggestion of \u00a7 380a, this Court adopted Rule 47.[13] In other cases of appeals, Rule 11 *85 governs docketing.[14] If Rule 11 applies also to appeals under \u00a7 380a, we may hear this appeal, for the steps for dismissal required by Rule 11 were not taken by the appellees. This is because upon the allowance of an appeal by a judge of the district court as here, Supreme Court Rules 10 and 36, the case is transferred from the district court to this Court and subsequent steps for dismissal or affirmance are to be taken here.[15] If, however, the above-quoted provision of \u00a7 380a as to docketing is a prerequisite to the power of this Court to review, this appeal must fail. Prior to the passage of \u00a7 380a, appeals docketed after the return day were governed by Rule 11, 275 U.S. 602. In principle it has long been in existence.[16] By the words of the rule, it appears that dismissal for appellant's tardiness in docketing requires a step by the appellee. Even after dismissal for failure to docket, the rule permits this Court to allow the appellant to docket. Nothing *86 in the legislative history which has been called to our attention indicates that Congress intended its docketing provision to vary Rule 11. Direct appeal accomplishes the congressional purpose of expediting review, of course, and is consistent with an unchanged practice as to dismissals. The time to docket may have been enlarged from the conventional return day of Rules 10 and 11 to bring continental uniformity, see Rule 10, or to give time for the preparation of a record which would often be large and not transcribed or printed. It will not expedite determination of constitutional questions to dismiss appeals because of errors of practice. In fact the sentence of \u00a7 380a on docketing seems deliberately to leave the practice on failure to docket to rules of court. We do not construe the requirement of docketing within sixty days as a limitation on our power to hear this appeal. So far as our Rule 47 is concerned, we construe it as requiring in accordance with \u00a7 380a the docketing in sixty days from the allowance of the appeal, instead of the forty days of our Rule 10, and that as to dismissals, the first sentence of Rule 47 requires the same practice for appeals under \u00a7 380a that Rule 11 does for other appeals. We think it desirable to have sufficient flexibility in the rule to permit extensions of the time for return in the unusual situations that occur when large records are involved. In view of the recognized congressional purpose to quicken review under \u00a7 380a, the discretion to delay final hearing allowed under Rule 11 will be exercised only on a definite showing of need therefor to assure fair review. This leads us to hear this appeal.[17] Second. At the threshold of consideration, we are called upon to decide whether the complaint states a controversy cognizable in this Court. We defer consideration of the cause of action of Mr. Poole until section Three of this *87 opinion. The other individual employees have elaborated the grounds of their objection in individual affidavits for use in the hearing on the summary judgment. We select as an example one that contains the essential averments of all the others and print below the portions with significance in this suit.[18] Nothing similar to the fourth paragraph *88 of the printed affidavit is contained in the other affidavits. The assumed controversy between affiant and the Civil Service Commission as to affiant's right to act as watcher at the polls on November 2, 1943, had long been moot when this complaint was filed. We do not therefore treat this allegation separately. The affidavits, it will be noticed, follow the generality of purpose expressed by the complaint. See note 11 supra. They declare a desire to act contrary to the rule against political activity but not that the rule has been violated. In this respect, we think they differ from the type of threat adjudicated in Railway Mail Association v. Corsi, 326 U.S. 88. In that case, the refusal to admit an applicant to membership in a labor union on account of race was involved. Admission had been refused. 326 U.S. at p. 93, note 10. Definite action had also been taken in Hill v. Florida, 325 U.S. 538. In the Hill case an injunction had been sought and allowed against Hill and the union forbidding Hill from acting as the business agent of the union and the union from further functioning as a union until it complied with the state law. The threats which menaced the affiants of these affidavits in the case now being considered are closer to a general threat by officials to enforce those laws which they are charged to administer, compare Watson v. Buck, 313 U.S. 387, 400, than they are to the direct threat of punishment against a named organization for a completed act that made the Mail Association and the Hill cases justiciable. *89 As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.[19] For adjudication of constitutional issues, \"concrete legal issues, presented in actual cases, not abstractions,\" are requisite.[20] This is as true of declaratory judgments as any other field.[21] These appellants seem clearly to seek advisory opinions upon broad claims of rights protected by the First, Fifth, Ninth and Tenth Amendments to the Constitution. As these appellants are classified employees, they have a right superior to the generality of citizens, compare Fairchild v. Hughes, 258 U.S. 126, but the facts of their personal interest in their civil rights, of the general threat of possible interference with those rights by the Civil Service Commission under its rules, if specified things are done by appellants, does not make a justiciable case or controversy. Appellants want to engage in \"political management and political campaigns,\" to persuade others to follow appellants' views by discussion, speeches, articles and other acts reasonably designed to secure the selection of appellants' political choices. Such generality of objection is really an attack on the political expediency of the Hatch Act, not the presentation of legal issues. It is beyond the competence of courts to render such a decision. Texas v. Interstate Commerce Commission, 258 U.S. 158, 162. The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises *90 only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other.[22] The Constitution allots the nation's judicial power to the federal courts. Unless these courts respect the limits of that unique authority, they intrude upon powers vested in the legislative or executive branches. Judicial adherence to the doctrine of the separation of powers preserves the courts for the decision of issues, between litigants, capable of effective determination. Judicial exposition upon political proposals is permissible only when necessary to decide definite issues between litigants. When the courts act continually within these constitutionally imposed boundaries of their power, their ability to perform their function as a balance for the people's protection against abuse of power by other branches of government remains unimpaired. Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies over constitutional issues, they would *91 become the organ of political theories. Such abuse of judicial power would properly meet rebuke and restriction from other branches. By these mutual checks and balances by and between the branches of government, democracy undertakes to preserve the liberties of the people from excessive concentrations of authority. No threat of interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regulations. Watson v. Buck, supra, p. 400. We should not take judicial cognizance of the situation presented on the part of the appellants considered in this subdivision of the opinion. These reasons lead us to conclude that the determination of the trial court, that the individual appellants, other than Poole, could maintain this action, was erroneous. Third. The appellant Poole does present by the complaint and affidavit matters appropriate for judicial determination.[23] The affidavits filed by appellees confirm that *92 Poole has been charged by the Commission with political activity and a proposed order for his removal from his position adopted subject to his right under Commission procedure to reply to the charges and to present further evidence in refutation.[24] We proceed to consider the controversy over constitutional power at issue between Poole and the Commission as defined by the charge and preliminary finding upon one side and the admissions of Poole's affidavit upon the other. Our determination is limited to those facts. This proceeding so limited meets the requirements of defined rights and a definite threat to interfere with a possessor of the menaced rights by a penalty for an act done in violation of the claimed restraint.[25] *93 Because we conclude hereinafter that the prohibition of \u00a7 9 of the Hatch Act and Civil Service Rule 1, see notes 2 and 6 above, are valid, it is unnecessary to consider, as this is a declaratory judgment action, whether or not this appellant sufficiently alleges that an irreparable injury to him would result from his removal from his position.[26] Nor need we inquire whether or not a court of equity would enforce by injunction any judgment declaring rights.[27] Since Poole admits that he violated the rule against political activity and that removal from office is therefore mandatory under the act, there is no question as to the exhaustion of administrative remedies. The act provides no administrative or statutory review for the order of the Civil Service Commission. Compare Stark v. Wickard, 321 U.S. 288, 306-10; Macauley v. Waterman S.S. Corporation, 327 U.S. 540. As no prior proceeding, offering an effective remedy or otherwise, is pending in the courts, there is no problem of judicial discretion as to whether to take cognizance of this case. Brillhart v. Excess Insurance Co., 316 U.S. 491, 496-97, dissent at 500; Larson v. General Motors Corporation, 134 F.2d 450, 453. Under such circumstances, we see no reason why a declaratory judgment action, even though constitutional issues are involved, does not lie. See Rules of Civil Procedure, Rule 57. Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 197, 207; Tunstall v. Brotherhood of *94 Locomotive Firemen & Enginemen, 323 U.S. 210, 212, et seq.[*] Fourth. This brings us to consider the narrow but important point involved in Poole's situation.[28] Poole's stated offense is taking an \"active part in political management or in political campaigns.\" He was a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and a paymaster for the services of other party workers. The issue for decision and the only one we decide is whether such a breach of the Hatch Act and Rule 1 of the Commission can, without violating the Constitution, be made the basis for disciplinary action. When the issue is thus narrowed, the interference with free expression is seen in better proportion as compared with the requirements of orderly management of administrative personnel. Only while the employee is politically active, in the sense of Rule 1, must he withhold expression of opinion on public subjects. See note 6. We assume that Mr. Poole would be expected to comment publicly as committeeman on political matters, so that indirectly there is an attenuated interference. We accept appellants' contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments are involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we *95 have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment. Appellant's objections under the Amendments are basically the same. We do not find persuasion in appellants' argument that such activities during free time are not subject to regulation even though admittedly political activities cannot be indulged in during working hours.[29] The influence of political activity by government employees, if evil in its effects on the service, the employees or people dealing with them, is hardly less so because that activity takes place after hours. Of course, the question of the need for this regulation is for other branches of government rather than the courts. Our duty in this case ends if the Hatch Act provision under examination is constitutional. Of course, it is accepted constitutional doctrine that these fundamental human rights are not absolutes. The requirements of residence and age must be met. The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery.[30] The powers granted by the Constitution to the *96 Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. Again this Court must balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government. As pointed out hereinbefore in this opinion, the practice of excluding classified employees from party offices and personal political activity at the polls has been in effect for several decades. Some incidents similar to those that are under examination here have been before this Court and the prohibition against certain types of political activity by officeholders has been upheld. The leading case was decided in 1882. Ex parte Curtis, 106 U.S. 371. There a subordinate United States employee was indicted for violation of an act that forbade employees who were not appointed by the President and confirmed by the Senate from giving or receiving money for political purposes from or to other employees of the government on penalty of discharge and criminal punishment. Curtis urged that the statute was unconstitutional. This Court upheld the right of Congress to punish the infraction of this law. The decisive principle was the power of Congress, within reasonable limits, to regulate, so far as it might deem necessary, the political conduct of its employees. A list of prohibitions against acts by public officials that are permitted to other citizens was given. This Court said, p. 373: \"The evident purpose of Congress in all this class of enactments has been to promote efficiency and *97 integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the just scope of legislative power, and it is not easy to see why the act now under consideration does not come fairly within the legitimate means to such an end.\" The right to contribute money through fellow employees to advance the contributor's political theories was held not to be protected by any constitutional provision. It was held subject to regulation. A dissent by Mr. Justice Bradley emphasized the broad basis of the Court's opinion. He contended that a citizen's right to promote his political views could not be so restricted merely because he was an official of government.[31] No other member of the Court joined in this dissent. The conclusion of the Court, that there was no constitutional bar to regulation of such financial contributions of public servants as distinguished from the exercise of political privileges such as the ballot, has found acceptance in the subsequent practice of Congress and the growth of the principle of required political neutrality for classified public servants as a sound element for efficiency.[32] The conviction *98 that an actively partisan governmental personnel threatens good administration has deepened since Ex parte Curtis. Congress recognizes danger to the service in that political rather than official effort may earn advancement and to the public in that governmental favor may be channeled through political connections.[33] In United States v. Wurzbach, 280 U.S. 396, the doctrine of legislative power over actions of governmental officials was held valid when extended to members of Congress. The members of Congress were prohibited from receiving contributions for \"any political purpose whatever\" from any other federal employees. Private citizens were not affected. The argument of unconstitutionality because of interference with the political rights of a citizen by that time was dismissed in a sentence. Compare United States v. Thayer, 209 U.S. 39. The provisions of \u00a7 9 of the Hatch Act and the Civil Service Rule 1 are not dissimilar in purpose from the statutes against political contributions of money. The prohibitions now under discussion are directed at political contributions of energy by government employees. *99 These contributions, too, have a long background of disapproval.[34] Congress and the President are responsible for an efficient public service. If, in their judgment, efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers, we see no constitutional objection.[35] Another Congress may determine that, on the whole, limitations on active political management by federal personnel are unwise. The teaching of experience has evidently led Congress to enact the Hatch Act provisions. To declare that the present supposed evils of political activity are beyond the power of Congress to redress would leave the nation impotent to deal with what many sincere men believe is a material threat to the democratic system. Congress is not politically naive or regardless of public welfare or that of the employees. It leaves untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency. With that limitation only, employees may make their contributions to public affairs or protect their own interests, as before the passage of the Act. *100 The argument that political neutrality is not indispensable to a merit system for federal employees may be accepted. But because it is not indispensable does not mean that it is not desirable or permissible. Modern American politics involves organized political parties. Many classifications of government employees have been accustomed to work in politics \u2014 national, state and local \u2014 as a matter of principle or to assure their tenure. Congress may reasonably desire to limit party activity of federal employees so as to avoid a tendency toward a one-party system. It may have considered that parties would be more truly devoted to the public welfare if public servants were not overactive politically. Appellants urge that federal employees are protected by the Bill of Rights and that Congress may not \"enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work.\" None would deny such limitations on congressional power but, because there are some limitations, it does not follow that a prohibition against acting as ward leader or worker at the polls is invalid. A reading of the Act and Rule 1, notes 2 and 6, supra, together with the Commission's determination[36] shows the wide range of public activities with which there is no interference by the legislation. It is only partisan political activity that is interdicted. It is active participation in political management and political campaigns. Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted by law so long as the government employee does not direct his activities toward party success. It is urged, however, that Congress has gone further *101 than necessary in prohibiting political activity to all types of classified employees. It is pointed out by appellants \"that the impartiality of many of these is a matter of complete indifference to the effective performance\" of their duties.[37] Mr. Poole would appear to be a good illustration for appellants' argument. The complaint states that he is a roller in the mint. We take it this is a job calling for the qualities of a skilled mechanic and that it does not involve contact with the public. Nevertheless, if in free time he is engaged in political activity, Congress may have concluded that the activity may promote or retard his advancement or preferment with his superiors. Congress may have thought that government employees are handy elements for leaders in political policy to use in building a political machine. For regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service. There are hundreds of thousands of United States employees with positions no more influential upon policy determination than that of Mr. Poole. Evidently what Congress feared was the cumulative effect on employee morale of political activity by all employees who could be induced to participate actively. It does not seem to us an unconstitutional basis for legislation. *102 There is a suggestion that administrative workers may be barred, constitutionally, from political management and political campaigns while the industrial workers may not be barred, constitutionally, without an act \"narrowly and selectively drawn to define and punish the specific conduct.\" A ready answer, it seems to us, lies in the fact that the prohibition of \u00a7 9 (a) of the Hatch Act \"applies without discrimination to all employees whether industrial or administrative\" and that the Civil Service Rules, by \u00a7 15 made a part of the Hatch Act, makes clear that industrial workers are covered in the prohibition against political activity. Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad. Whatever differences there may be between administrative employees of the government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress. We do not know whether the number of federal employees will expand or contract; whether the need for regulation of their political activities will increase or diminish. The use of the constitutional power of regulation is for Congress, not for the courts. We have said that Congress may regulate the political conduct of government employees \"within reasonable limits,\" even though the regulation trenches to some extent upon unfettered political action. The determination of the extent to which political activities of governmental employees shall be regulated lies primarily with Congress. Courts will interfere only when such regulation passes beyond the generally existing conception of governmental power. That conception develops from practice, history, and changing educational, social and economic conditions. The regulation of such activities as Poole carried on has *103 the approval of long practice by the Commission, court decisions upon similar problems and a large body of informed public opinion. Congress and the administrative agencies have authority over the discipline and efficiency of the public service. When actions of civil servants in the judgment of Congress menace the integrity and the competency of the service, legislation to forestall such danger and adequate to maintain its usefulness is required. The Hatch Act is the answer of Congress to this need. We cannot say with such a background that these restrictions are unconstitutional. Section 15 of the Hatch Act, note 3 above, defines an active part in political management or political campaigns as the same activities that the United States Civil Service Commission has determined to be prohibited to classified civil service employees by the provisions of the Civil Service Rules when \u00a7 15 took effect July 19, 1940. 54 Stat. 767. The activities of Mr. Poole, as ward executive committeeman and a worker at the polls, obviously fall within the prohibitions of \u00a7 9 of the Hatch Act against taking an active part in political management and political campaigns. They are also covered by the prior determinations of the Commission.[38] We need to examine no further *104 at this time into the validity of the definition of political activity and \u00a7 15.[39] The judgment of the District Court is accordingly Affirmed. MR. JUSTICE MURPHY and MR. JUSTICE JACKSON took no part in the consideration or decision of this case. MR. JUSTICE RUTLEDGE dissents as to Poole for the reasons stated by MR. JUSTICE BLACK. He does not pass upon the constitutional questions presented by the other appellants for the reason that he feels the controversy as to them is not yet appropriate for the discretionary exercise of declaratory judgment jurisdiction. MR. JUSTICE FRANKFURTER, concurring. The terms of the Act of August 24, 1937, 50 Stat. 751, 752, 28 U.S.C. \u00a7 380a, in the light of its history, have convinced me that this case should be dismissed for want of jurisdiction. In that Act, Congress put a limit to the time within which a case may be docketed here after an appeal below is allowed. Such a limitation by Congress is in the exercise of its power to regulate the appellate jurisdiction of this Court. It is not within our power to enlarge a limit fixed by Congress unless Congress itself gave the Court such dispensing power. In allowing a direct appeal to this Court from a district court \"under such rules as may be prescribed,\" Congress did not mean to give this Court power to defeat the considerations of speed in the disposition of controversies involving the constitutionality of federal legislation which led to the specific provision that a case be docketed \"within sixty days from the time such appeal is allowed.\" *105 No rule of this Court could disregard the limitations for perfecting an appeal made by Congress. Nor does Rule 47, which was the rule responsive to the Act of August 24, 1937, purport to do so. It merely reasserts the statutory requirement that in a case like this \"The record shall be made up and the case docketed in this court within sixty days from the time the appeal is allowed.\" The introductory part of Rule 47, whereby the Rules of this Court regulating appellate procedure in other cases are adopted \"as far as may be,\" has ample scope for operation without qualifying the necessity for speedy perfection of an appeal in cases involving constitutionality, so that the validity of acts of Congress may not remain in doubt through protracted litigation. This was a deep concern of Congress and its reason for imposing the sixty-day limitation for perfecting appeals in this class of cases. But under compulsion of the Court's assumption of jurisdiction, I reach the merits and join in MR. JUSTICE REED's opinion. MR. JUSTICE BLACK, dissenting. The sentence in \u00a7 9 of the statute, here upheld, makes it unlawful for any person employed in the executive branch of the Federal Government, with minor numerical exceptions,[1] to \"take any active part in political management or in political campaigns.\" The punishment provided *106 is immediate discharge and a permanent ban against reemployment in the same position.[2] The number of federal employees thus barred from political action is approximately three million. Section 12 of the same Act affects the participation in political campaigns of many thousands of state employees.[3] No one of all these millions of citizens can, without violating this law, \"take any active part\" in any campaign for a cause or for a candidate if the cause or candidate is \"specifically identified with any National or State political party.\" Since under our common *107 political practices most causes and candidates are espoused by political parties, the result is that, because they are paid out of the public treasury, all these citizens who engage in public work can take no really effective part in campaigns that may bring about changes in their lives, their fortunes, and their happiness.[4] We are not left in doubt as to how numerous and varied are the \"activities\" prohibited. For \u00a7 15 sweepingly describes them as \"the same activities . . . as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States. . . .\" Along with the vague and uncertain prior prohibitions of the Commission, are these things which the Commission had clearly prohibited: serving as an election officer; publicly expressing political views at a party caucus or political gathering for or against any candidate or cause identified with a party; *108 soliciting votes for a party or candidate; participating in a political parade; writing for publication or publishing any letter or article, signed or unsigned, in favor of or against any political party, candidate, or faction; initiating, or canvassing for signatures on, community petitions or petitions to Congress. In view of these prohibitions, it is little consolation to employees that the Act contradictorily says that they may \"express their opinions on all political subjects and candidates.\" For this permission to \"express their opinions\" is the Commission has rightly said, \"subject to the prohibition that employees may not take any active part in . . . political campaigns.\" The hopeless contradiction between this privilege of an employee to talk and the prohibition against his talking stands out in the Commission's further warning to all employees that they can express their opinions publicly, but \"Public expression of opinion in such a way as to constitute taking an active part in political management or in political campaigns is accordingly prohibited.\" Thus, whatever opinions employees may dare to express, even secretly, must be at their peril. They cannot know what particular expressions may be reported to the Commission and held by it to be a sufficient political activity to cost them their jobs. Their peril is all the greater because of another warning by the Commission that \"Employees are . . . accountable for political activity by persons other than themselves, including wives or husbands, if, in fact, the employees are thus accomplishing by collusion and indirection what they may not lawfully do directly and openly.\" Thus are the families of public employees stripped of their freedom of political action. The result is that the sum of political privilege left to government and state employees, and their families, to take part in political campaigns seems to be this: They may vote in silence; they may carefully and quietly express a political view at *109 their peril; and they may become \"spectators\" (this is the Commission's word) at campaign gatherings, though it may be highly dangerous for them to \"second a motion\" or let it be known that they agree or disagree with a speaker. All of the petitioners here challenge the constitutional validity of that sentence of \u00a7 9 of the statute which prohibits all federal employees from taking \"any active part in political management or in political campaigns\" and which by reference only sweeps under this prohibition all then-existing civil service regulations. The charge is that this provision, thus supplemented by the regulations, violates the First Amendment by prohibiting freedom of press, speech, and assembly; that it violates the Fifth Amendment because it effects an arbitrary and gross discrimination between government employees covered and those exempted; that it also violates the Fifth Amendment because it is so vague and indefinite as to prohibit lawful activities as well as activities which are properly made unlawful by other provisions of law. Thus, these attacks of Poole and all the other petitioners are identical, namely, that the provision is unconstitutional on its face. The Court decides this question against Poole after holding that his case presents a justiciable controversy. I think Poole's challenge to the constitutionality of the provision should be sustained. And since I agree with MR. JUSTICE DOUGLAS that all the petitioners' complaints state a case or controversy, and show threats of imminent irreparable damages, I think that the contention that the challenged provision is unconstitutional on its face should be sustained as to all of them. Had this measure deprived five million farmers or a million businessmen of all right to participate in elections, because Congress thought that federal farm or business subsidies might prompt some of them to exercise, or be susceptible to, a corrupting influence on politics or government, *110 I would not sustain such an Act on the ground that it could be interpreted so as to apply only to some of them. Certainly laws which restrict the liberties guaranteed by the First Amendment should be narrowly drawn to meet the evil aimed at and to affect only the minimum number of people imperatively necessary to prevent a grave and imminent danger to the public.[5] Furthermore, what federal employees can or cannot do, consistently with the various civil service regulations, rules, warnings, etc., is a matter of so great uncertainty that no person can even make an intelligent guess. This was demonstrated by the government's briefs and oral arguments in this case. I would hold that the provision here attacked is too broad, ambiguous, and uncertain in its consequences to be made the basis of removing deserving employees from their jobs. See dissenting opinion, Williams v. North Carolina, 325 U.S. 226, 261, 276-278 and cases collected, note 16. The right to vote and privately to express an opinion on political matters, important though they be, are but parts of the broad freedoms which our Constitution has provided as the bulwark of our free political institutions. Popular government, to be effective, must permit and encourage much wider political activity by all the people.[6] Real popular government means \"that men may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion . . . Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political *111 and economic truth.\" Thornhill v. Alabama, 310 U.S. 88, 95. Legislation which muzzles several million citizens threatens popular government, not only because it injures the individuals muzzled, but also because of its harmful effect on the body politic in depriving it of the political participation and interest of such a large segment of our citizens. Forcing public employees to contribute money and influence can well be proscribed in the interest of \"clean politics\" and public administration. But I think the Constitution prohibits legislation which prevents millions of citizens from contributing their arguments, complaints, and suggestions to the political debates which are the essence of our democracy; prevents them from engaging in organizational activity to urge others to vote and take an interest in political affairs; bars them from performing the interested citizen's duty of insuring that his and his fellow citizens' votes are counted. Such drastic limitations on the right of all the people to express political opinions and take political action would be inconsistent with the First Amendment's guaranty of freedom of speech, press, assembly, and petition. And it would violate, or come dangerously close to violating, Article I and the Seventeenth Amendment of the Constitution, which protect the right of the people to vote for their Congressmen and their United States Senators and to have their votes counted. See Ex parte Yarbrough, 110 U.S. 651; United States v. Mosley, 238 U.S. 383; United States v. Classic, 313 U.S. 299, 314. There is nothing about federal and state employees as a class which justifies depriving them or society of the benefits of their participation in public affairs. They, like other citizens, pay taxes and serve their country in peace and in war. The taxes they pay and the wars in which they fight are determined by the elected spokesmen of all the people. They come from the same homes, communities, schools, churches, and colleges as do the other *112 citizens. I think the Constitution guarantees to them the same right that other groups of good citizens have to engage in activities which decide who their elected representatives shall be. No statute of Congress has ever before attempted so drastically to stifle the spoken and written political utterances and lawful political activities of federal and state employees as a class. The nearest approach was the Civil Service Act of 1883, 22 Stat. 403-4, which authorized the President to promulgate rules so that, among other things, no government employee should \"use his official authority or influence to coerce the political action of any person or body.\" In 1907, the Civil Service Commission, purporting to act under authority of the 1883 Act, did, as the Court points out, prohibit civil service employees from taking \"an active part in political management or in political campaigns.\" But this Court has not approved the statutory power of the Commission to promulgate such a rule, nor has it ever expressly or by implication approved the constitutional validity of any such sweeping abridgement of the right of freedom of expression. Neither Ex parte Curtis, 106 U.S. 371, nor United States v. Wurzbach, 280 U.S. 396, lend the slightest support to the present statute. Both of these cases related to statutes which did no more than limit the right of employees to collect money from other employees for political purposes. Indeed, the Curtis decision seems implicitly to have rested on the assumption that many political activities of government employees, beyond merely voting and speaking secretly, would not, and could not under the Constitution, be impaired by the legislation there at issue. Ex parte Curtis, supra, at 375. It is argued that it is in the interest of clean politics to suppress political activities of federal and state employees. It would hardly seem to be imperative to muzzle millions *113 of citizens because some of them, if left their constitutional freedoms, might corrupt the political process. All political corruption is not traceable to state and federal employees. Therefore, it is possible that other groups may later be compelled to sacrifice their right to participate in political activities for the protection of the purity of the Government of which they are a part. It may be true, as contended, that some higher employees, unless restrained, might coerce their subordinates or that government employees might use their official position to coerce other citizens. But is such a possibility of coercion of a subordinate by his employer limited to governmental employer-employee relationships?[7] The same quality of argument would support a law to suppress the political freedom of all employees of private employers, and particularly of employers who borrow money or draw subsidies from the Government. Nor does it seem plausible that all of the millions of public employees whose rights to free expression are here stifled might, if they participate in elections, coerce other citizens not employed by the Government or the States. Poole, one of the petitioners here, is a roller in a United States mint. His job is about on a par in terms of political influence with that of most other state, federal, and private business employees. Such jobs generally do not give such employees who hold them sufficient authority to enable them to wield a dangerous or coercive influence on the political world. If the possibility exists that some other public employees may, by reason of their more influential positions, coerce other public employees or other citizens, laws can be drawn to punish the coercers.[8] It hardly seems consistent with *114 our system of equal justice to all to suppress the political and speaking freedom of millions of good citizens because a few bad citizens might engage in coercion.[9] It may also be true, as contended, that if public employees are permitted to exercise a full freedom to express their views in political campaigns, some public officials will discharge some employees and grant promotion to others on a political rather than on a merit basis. For the same reasons other public officials, occupying positions of influence, may use their influence to have their own political supporters appointed or promoted. But here again, if the practice of making discharges, promotions or recommendations for promotions on a political basis is so great an evil as to require legislation, the law could punish those public officials who engage in the practice. To punish millions of employees and to deprive the nation of their contribution to public affairs, in order to remove temptation from a proportionately small number of public officials, seems at the least to be a novel method of suppressing what is thought to be an evil practice. Our political system, different from many others, rests on the foundation of a belief in rule by the people \u2014 not some, but all the people. Education has been fostered better to fit people for self-expression and good citizenship. In a country whose people elect their leaders and decide great public issues, the voice of none should be suppressed \u2014 at least such is the assumption of the First Amendment. That Amendment, unless I misunderstand its meaning, includes a command that the Government must, in order to promote its own interest, leave the people at liberty to speak their own thoughts about government, advocate their own favored governmental causes, and work for their own political candidates and parties. *115 The section of the Act here held valid reduces the constitutionally protected liberty of several million citizens to less than a shadow of its substance. It relegates millions of federal, state, and municipal employees to the role of mere spectators of events upon which hinge the safety and welfare of all the people, including public employees. It removes a sizable proportion of our electorate from full participation in affairs destined to mould the fortunes of the nation. It makes honest participation in essential political activities an offense punishable by proscription from public employment. It endows a governmental board with the awesome power to censor the thoughts, expressions, and activities of law-abiding citizens in the field of free expression, from which no person should be barred by a government which boasts that it is a government of, for, and by the people \u2014 all the people. Laudable as its purpose may be, it seems to me to hack at the roots of a Government by the people themselves; and consequently I cannot agree to sustain its validity. MR. JUSTICE DOUGLAS, dissenting in part. I disagree with the Court on two of the four matters decided. First. There are twelve individual appellants here asking for an adjudication of their rights.[1] The Court passes on the claim of only one of them, Poole. It declines to pass on the claims of the other eleven on the ground that *116 they do not present justiciable cases or controversies. With this conclusion I cannot agree. It is clear that the declaratory judgment procedure is available in the federal courts only in cases involving actual controversies and may not be used to obtain an advisory opinion in a controversy not yet arisen. Coffman v. Breeze Corporations, 323 U.S. 316, 324-325, and cases cited. The requirement of an \"actual controversy,\" which is written into the statute (Judicial Code \u00a7 274d, 28 U.S.C. \u00a7 400) and has its roots in the Constitution (Article III, \u00a7 2), seems to me to be fully met here. What these appellants propose to do is plain enough. If they do what they propose to do, it is clear that they will be discharged from their positions. The analysis of the situation by the District Court seems to me to be accurate and conclusive: \"The mere existence of the statute, saying that they shall not engage in political activity, the penalty in the statute that they shall be dismissed if they do, and the warning addressed to them by the Civil Service Commission in their posters certainly prevent them from engaging in such activity, if the statute is constitutional. If the statute is unconstitutional, they are being prevented from things which they have the right to do. If the statute is constitutional, it is mandatory that they be dismissed for doing such things. . . . The provisions of Civil Service Rule XV that in case of any violation of the Civil Service Act or Rules or of any Executive Order or any regulation of the Commission the Commission shall certify the facts to the proper appointing officer with specific instructions as to discipline or dismissal is now controlled by the provisions of the Hatch Act that in case of violation of Section 9 (a) of that Act, dismissal is mandatory.\" 56 F. Supp. 621, 624. *117 Their proposed conduct is sufficiently specific to show plainly that it will violate the Act. The policy of the Commission and the mandate of the Act leave no lingering doubt as to the consequences.[2] On a discharge these employees would lose their jobs, their seniority, and other civil service benefits. They could, of course, sue in the Court of Claims. United States v. Lovett, 328 U.S. 303. But the remedy there is a money judgment, not a restoration to the office formerly held. Of course, there might be other remedies available in these situations to determine their rights to the offices from which they are discharged. See White v. Berry, 171 U.S. 366, 377. But to require these employees first to suffer the hardship of a discharge is not only to make them incur a penalty; it makes inadequate, if not wholly illusory, any legal remedy which they may have.[3] Men who must sacrifice their means of livelihood in order to test their rights to their jobs must either pursue prolonged and expensive litigation as unemployed persons or pull up their roots, change their life careers, and seek employment in other fields. At least to the average person in the lower income groups the burden of taking that course *118 is irreparable injury,[4] cf. Ex parte Young, 209 U.S. 123, 165, no matter how exact the required showing. Cf. Watson v. Buck, 313 U.S. 387, 400. The declaratory judgment procedure may not, of course, be used as a substitute for other equitable remedies to defeat a legislative policy, Great Lakes Co. v. Huffman, 319 U.S. 293, 300-301, or to circumvent the necessity of exhausting administrative remedies. Order of Conductors v. Penn. R. Co., 323 U.S. 166; Macauley v. Waterman S.S. Corp., 327 U.S. 540. But it fills a need and serves a high function previously \"performed rather clumsily by our equitable proceedings and inadequately by the law courts.\" H.R. Rep. No. 1264. 73d Cong., 2d Sess., p. 2.[5] *119 The declaratory judgment procedure is designed \"to declare rights and other legal relations of any interested party . . . whether or not further relief is or could be prayed.\" Judicial Code \u00a7 274d, 28 U.S.C. \u00a7 400. The fact that equity would not restrain a wrongful removal of an officeholder but would leave the complainant to his legal remedies, White v. Berry, supra, is, therefore, immaterial. A judgment which, without more, adjudicates the status of a person is permissible under the Declaratory Judgment Act. Perkins v. Elg, 307 U.S. 325, 349-350. The \"declaration of a status was perhaps the earliest exercise of this procedure.\" H.R. Rep. No. 1264. 73d Cong., 2d Sess., p. 2. The right to hold an office or public position against such threats is a common example of its use.[6] Borchard, Declaratory Judgments (2d ed.), pp. 858 et seq. Declaratory relief is the singular remedy available here to preserve the status quo while the constitutional rights of these appellants to make these utterances and to engage in these activities are determined. The threat against them is real not fanciful, immediate not remote. The case is therefore an actual not a hypothetical one.[7]*120 And the present case seems to me to be a good example of a situation where uncertainty, peril, and insecurity result from imminent and immediate threats to asserted rights. Since the Court does not reach the constitutionality of the claims of these eleven individual appellants, a discussion of them would seem to be premature. Second. Poole is not in the administrative category of civil service. He is an industrial worker \u2014 a roller in the mint, a skilled laborer or artisan whose work or functions in no way affect the policy of the agency nor involve relationships with the public. There is a marked difference in the British treatment of administrative and industrial employees under civil service.[8] And the difference between the two is for me relevant to the problem we have here. *121 The civil service system has been called \"the one great political invention\" of nineteenth century democracy.[9] The intricacies of modern government, the important and manifold tasks it performs, the skill and expertise required, the vast discretionary powers vested in the various agencies, and the impact of their work on individual claimants as well as on the general welfare have made the integrity, devotion, and skill of the men and women who compose the system a matter of deep concern of many thoughtful people.[10] Political fortunes of parties will ebb and flow; top policy men in administrations will come and go; new laws will be passed and old ones amended or repealed. But those who give continuity to administration, those who contribute the basic skill and efficiency to the daily work of government, and those on whom the new as well as the old administration is dependent for smooth functioning of the complicated machinery of modern government are the core of the civil service. If they are beneficiaries of political patronage rather than professional careerists, serious results might follow \u2014 or so Congress could reasonably believe. Public confidence in the objectivity and integrity of the civil service system might be so weakened as to jeopardize the effectiveness of administrative government. Or it might founder on the rocks of incompetency, if every change in political fortunes turned out the incumbents, broke the continuity of administration, and thus interfered with the development of expert management *122 at the technical levels. Or if the incumbents were political adventurers or party workers, partisanship might color or corrupt the processes of administration of law with which most of the administrative agencies are entrusted. The philosophy is to develop a civil service which can and will serve loyally and equally well any political party which comes into power.[11] Those considerations might well apply to the entire group of civil servants in the administrative category \u2014 whether they are those in the so-called expert classification or are clerks, stenographers and the like. They are the ones who have access to the files, who meet the public, who arrange appointments, who prepare the basic data on which policy decisions are made. Each may be a tributary, though perhaps a small one, to the main stream which we call policy making or administrative action. If the element of partisanship enters into the official activities of any member of the group, it may have its repercussions or effect throughout the administrative process. Thus in that type of case there would be much to support the view of the Court that Congress need not undertake to draw the line to include only the more important offices but can take the precaution of protecting the whole by insulating even the lowest echelon from partisan activities. So, I think that if the issues tendered by Poole were tendered by an administrative employee, we would have quite a different case. For Poole claims the right to work as a ward executive committeeman, i.e., as an officeholder in a political party. But Poole, being an industrial worker, is as remote from contact with the public or from policy making or from the functioning of the administrative process as a charwoman. *123 The fact that he is in the classified civil service is not, I think, relevant to the question of the degree to which his political activities may be curtailed. He is in a position not essentially different from one who works in the machine shop of a railroad or steamship which the Government runs, or who rolls aluminum in a manufacturing plant which the Government owns and operates. Can all of those categories of industrial employees constitutionally be insulated from American political life? If at some future time it should come to pass in this country, as it has in England, that a broad policy of state ownership of basic industries is inaugurated, does this decision mean that all of the hundreds of thousands of industrial workers affected could be debarred from the normal political activity which is one of our valued traditions? The evils of the \"spoils\" system do not, of course, end with the administrative group of civil servants. History shows that the political regimentation of government industrial workers produces its own crop of abuses. Those in top policy posts or others in supervisory positions might seek to knit the industrial workers in civil service into a political machine. As a weapon they might seek to make the advancement of industrial workers dependent on political loyalty, on financial contributions, or on other partisan efforts. Or political activities of these workers might take place on government premises, on government time, or otherwise at government expense. These are specific evils which would require a specific treatment. There is, however, no showing of any such abuse here. What Poole did, he did no his own without compulsion or suggestion or invitation from any one higher up. Nor does it appear that what he did was done on government time or on government premises. Moreover, as MR. JUSTICE BLACK points out, laws can be drawn to punish those who use such coercion. See Ex parte Curtis, 106 U.S. 371. Such activity is more than the exercise of *124 political prerogatives; it is the use of official power as well, and hence can be restrained or punished. Cf. Bakery Drivers Local v. Wohl, 315 U.S. 769, 776-777; Thomas v. Collins, 323 U.S. 516, 543-544. The question is whether a permissible remedy is complete or partial political sterilization of the industrial group. There is, of course, the possibility of the mobilization, whether voluntary or otherwise, of millions of employees of the Federal Government and federally assisted state agencies for the purpose of maintaining a particular party or group in power. The marked increase in the number of government employees in recent years has accentuated the problem. The difficulty lies in attempting to preserve our democratic way of life by measures which deprive a large segment of the population of all political rights except the right to vote. Absent coercion, improper use of government position or government funds, or neglect or inefficiency in the performance of duty, federal employees have the same rights as other citizens under the Constitution. They are not second-class citizens. If, in the exercise of their rights, they find common political interests and join with each other or other groups in what they conceive to be their interests or the interests of the nation, they are simply doing what any other group might do. In other situations where the balance was between constitutional rights of individuals and a community interest which sought to qualify those rights, we have insisted that the statute be \"narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest\" of government. Cantwell v. Connecticut, 310 U.S. 296, 311. And see Murdock v. Pennsylvania, 319 U.S. 105, 116; Thornhill v. Alabama, 310 U.S. 88, 104-105. That seems to me the proper course to follow here. The prohibition in \u00a7 9 (a) of the Hatch Act against government employees taking an \"active part in political management *125 or in political campaigns\" applies without discrimination to all employees whether industrial or administrative. The same is true of the Civil Service Rules. See Rules I, \u00a7 1, XV, 5 C.F.R. Cum. Supp., \u00a7\u00a7 1.1, 15.1. But the supposed evils are both different and narrower in case of industrial workers than they are in the case of the administrative group.[12] The public interest in the political activity of a machinist or elevator operator or charwoman is a distinct and different problem.[13] In those cases the public concern is in the preservation of an unregimented industrial group, in a group free from political pressures of superiors who use their official power for a partisan purpose. Then official power is misused, *126 perverted. The Government is corrupted by making its industrial workers political captives, victims of bureaucratic power, agents for perpetuating one party in power. Offset against that public concern are the interests of the employees in the exercise of cherished constitutional rights. The nature and importance of those rights have been fully expounded in MR. JUSTICE BLACK'S opinion. If those rights are to be qualified by the larger requirements of modern democratic government, the restrictions should be narrowly and selectively drawn to define and punish the specific conduct which constitutes a clear and present danger to the operations of government. It seems plain to me that that evil has its roots in the coercive activity of those in the hierarchy who have the power to regiment the industrial group or who undertake to do so. To sacrifice the political rights of the industrial workers goes far beyond any demonstrated or demonstrable need. Those rights are too basic and fundamental in our democratic political society to be sacrificed or qualified for anything short of a clear and present danger to the civil service system. No such showing has been made in the case of these industrial workers[14] which justifies their political sterilization as distinguished from selective measures aimed at the coercive practices on which the spoils system feeds. NOTES [*] Another controversy under the same act is decided today. Oklahoma v. United States Civil Service Commission, post, p. 127. [1] August 2, 1939, 53 Stat. 1147; July 19, 1940, 54 Stat. 767; 56 Stat. 181, 986; 58 Stat. 136, 148, 727; 59 Stat. 108, 658; 60 Stat. 937. Only the first two are important for consideration of this case. [2] 18 U.S.C. \u00a7 61h, as amended: \"(a) It shall be unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, except a part-time officer or part-time employee without compensation or with nominal compensation serving in connection with the existing war effort, other than in any capacity relating to the procurement or manufacture of war material shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as, they may choose and to express their opinions on all political subjects and candidates. For the purposes of this section the term `officer' or `employee' shall not be construed to include (1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nationwide administration of Federal laws. \"(b) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person.\" 53 Stat. 1147, 1148; 54 Stat. 767; 56 Stat. 181. [3] 18 U.S.C. \u00a7 61o: \"The provisions of this subchapter which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States by the provisions of the civil-service rules prohibiting such employees from taking any active part in political management or in political campaigns.\" 54 Stat. 767, 771. [4] See Civil Service Act (1883), \u00a7 2, 22 Stat. 403-404: \"SEC. 2. That it shall be the duty of said commissioners: \"FIRST. To aid the President, as he may request, in preparing suitable rules for carrying this act into effect, and when said rules shall have been promulgated it shall be the duty of all officers of the United States in the departments and offices to which any such rules may relate to aid, in all proper ways, in carrying said rules, and any modifications thereof, into effect. \"SECOND. And, among other things, said rules shall provide and declare, as nearly as the conditions of good administration will warrant, as follows: ..... \"Sixth, that no person in said service has any right to use his official authority or influence to coerce the political action of any person or body.\" 5 U.S.C. \u00a7 631: \"The President is authorized to . . . establish regulations for the conduct of persons who may receive appointments in the civil service.\" First Annual Report, Civil Service Commission, H.R. Ex. Doc. No. 105, 48th Cong., 1st Sess., p. 45: \"In the exercise of the power vested in the President by the Constitution, and by virtue of the 1753d section of the Revised Statutes, and of the civil service act approved January 16, 1883, the following rules for the regulation and improvement of the executive civil service are hereby amended and promulgated: RULE I. \"No person in said service shall use his official authority or influence either to coerce the political action of any person or body or to interfere with any election.\" Executive Order No. 642, June 3, 1907 (amended to consolidate without changing wording, Executive Order No. 655, June 15, 1907); Twenty-Fourth Annual Report, Civil Service Commission, House Doc. No. 600, 60th Cong., 1st Sess., p. 104: \"Section 1 of Rule I of the civil-service rules is hereby amended to read as follows: \"No person in the Executive civil service shall use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. Persons who, by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management or in political campaigns.\" [5] Civil Service Rules 15, 3 Fed. Reg. 1525. [6] 5 C.F.R., Cum. Supp., \u00a7 1.1: \"No interference with elections. No person in the executive civil service shall use his official authority or influence for the purpose of interfering with an election or affecting the results thereof. Persons who by the provisions of the rules in this chapter are in the competitive classified service, while retaining the right to vote as they please and to express their opinion on all political subjects, shall take no active part in political management or in political campaigns.\" Section 15.1: \"Legal appointment necessary to compensation. Whenever the Commission finds, after due notice and opportunity for explanation, that any person has been appointed to or is holding any position, whether by original appointment, promotion, assignment, transfer, or reinstatement, in violation of the Civil Service Act or Rules, or of any Executive order or any regulation of the Commission, or that any employee subject thereto has violated such Act, Rules, orders, or regulations, it shall certify the facts to the proper appointing officer with specific instructions as to discipline or dismissal of the person or employee affected. If the appointing officer fails to carry out the instructions of the Commission within 10 days after receipt thereof, the Commission shall certify the facts to the proper disbursing and auditing officers, and such officers shall make no payment or allowance of the salary or wages of any such person or employee thereafter accruing.\" See E.O. 8705, March 5, 1941, 6 Fed. Reg. 1313. [7] See note 4, supra, and 5 C.F.R. \u00a7 1.1, June 1, 1938.\nA change occurred also in Rule 15. This was to comply with a ruling of the Attorney General that the Hatch Act made removal from office a mandatory penalty for forbidden political activity. 40 Op. A.G., Political Activity by Government Employees, January 8, 1941. See note 5, supra, for Rule 15 prior to Hatch Act. [8] See 28 U.S.C. \u00a7 380 (a); \u00a7 11-306 District of Columbia Code. [9] Judicial Code \u00a7 274d; 28 U.S.C. \u00a7 400. [10] No contention that appellant, United Public Workers of America (C.I.O.), lacked capacity to bring this action is made by appellees. We need not consider the question here. McCandless v. Furlaud, 293 U.S. 67, 73-74. See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275. [11] \"In discharge of their duties of citizenship, of their right to vote, and in exercise of their constitutional rights of freedom of speech, of the press, of assembly, and the right to engage in political activity, the individual plaintiffs desire to engage in the following acts: write for publication letters and articles in support of candidates for office; be connected editorially with publications which are identified with the legislative program of UFWA [former name of the present union appellant] and candidates who support it; solicit votes, aid in getting out voters, act as accredited checker, watcher, or challenger; transport voters to and from the polls without compensation therefor; participate in and help in organizing political parades; initiate petitions, and canvass for the signatures of others on such petitions; serve as party ward committeeman or other party official; and perform any and all acts not prohibited by any provision of law other than the second sentence of Section 9 (a) and Section 15 of the Hatch Act, which constitute taking an active part in political management and political campaigns.\" [12] \"The second sentence of Section 9 (a) of the Hatch Act is repugnant to the Constitution of the United States as a deprivation of freedom of speech, of the press, and of assembly in violation of the First Amendment.\n\"The second sentence of Section 9 (a) of the Hatch Act is repugnant to the Constitution of the United States as a deprivation of the fundamental right of the people of the United States to engage in political activity, reserved to the people of the United States by the Ninth and Tenth Amendments. \"The second sentence of Section 9 (a) of the Hatch Act is repugnant to the Constitution of the United States, since it unreasonably prohibits Federal employees from engaging in activities which may be lawfully carried on by persons who are not Federal employees, thus constituting a deprivation of liberty in violation of the Fifth Amendment. \"The second sentence of Section 9 (a) of the Hatch Act is repugnant to the Constitution of the United States since it effects an arbitrary and grossly unreasonable discrimination between employees of the Federal Government in the classified civil service subject to its provisions and employees specifically exempted therefrom, in violation of the Fifth Amendment. \"The second sentence of Section 9 (a) of the Hatch Act is repugnant to the Constitution of the United States since it is so vague and indefinite as to prohibit lawful activities as well as activities which are properly made unlawful by other provisions of law, in violation of the Fifth Amendment.\" [13] Rules of the Supreme Court of the United States, Rule 47: \"Appeals to this court under the Act of August 24, 1937, shall be governed, as far as may be, by the rules of this court regulating the procedure on appeal in other cases from courts of the United States; . . . The record shall be made up and the case docketed in this court within sixty days from the time the appeal is allowed.\" [14] Id., Rule 11: \"1. It shall be the duty of the appellant to docket the case and file the record thereof with the clerk of this court by or before the return day, whether in vacation or in term time. But, for good cause shown, the justice or judge who signed the citation, or any justice of this court, may enlarge the time, before its expiration, the order of enlargement to be filed with the clerk of this court. If the appellant shall fail to comply with this rule, the appellee may have the cause docketed and the appeal dismissed upon producing a certificate, whether in term or vacation, from the clerk of the court wherein the judgment or decree was rendered, stating the case and certifying that such appeal has been duly allowed. And in no case shall the appellant be entitled to docket the cause and file the record after the appeal shall have been dismissed under this rule, unless by special leave of the court.\" [15] Steps allowed in the district court after the allowance of appeal, such as preparation of the record, extension of time and cost or supersedeas bonds, are for convenience taken in the court possessed of the record. Rules 10, 11 and 36, Supreme Court; Rule 72, Rules of Civil Procedure. [16] 3 Cranch 239; Bingham v. Morris, 7 Cranch 99; Sparrow v. Strong, 3 Wall. 97, 103. Compare Grigsby v. Purcell, 99 U.S. 505. [17] Compare Georgia Lumber Co. v. Compania, 323 U.S. 334. [18] \"At this time, when the fate of the entire world is in the balance I believe it is not only proper but an obligation for all citizens to participate actively in the making of the vital political decisions on which the success of the war and the permanence of the peace to follow so largely depend. For the purpose of participating in the making of these decisions it is my earnest desire to engage actively in political management and political campaigns. I wish to engage in such activity upon my own time, as a private citizen.\n\"I wish to engage in such activities on behalf of those candidates for public office who I believe will best serve the needs of this country and with the object of persuading others of the correctness of my judgments and of electing the candidates of my choice. This objective I wish to pursue by all proper means such as engaging in discussion, by speeches to conventions, rallies and other assemblages, by publicizing my views in letters and articles for publication in newspapers and other periodicals, by aiding in the campaign of candidates for political office by posting banners and posters in public places, by distributing leaflets, by `ringing doorbells', by addressing campaign literature, and by doing any and all acts of like character reasonably designed to assist in the election of candidates I favor. \"I desire to engage in these activities freely, openly, and without concealment. However, I understand that the second sentence of Section 9 (a) of the Hatch Act and the Rules of the C.S.C. provide that if I engage in this activity, the Civil Service Commission will order that I be dismissed from federal employment. Such deprivation of my job in the federal government would be a source of immediate and serious financial loss and other injury to me. \"At the last Congressional election I was very much interested in the outcome of the campaign and offered to help the party of my choice by being a watcher at the polls. I obtained a watcher's certificate but I was advised that there might be some question of my right to use the certificate and retain my federal employment. Therefore, on November 1, 1943, the day before election, I called the regional office of the Civil Service Commission in Philadelphia and spoke to a person who gave his name as . . . Mr. . . . stated that if I used my watcher's certificate, the Civil Service Commission would see that I was dismissed from my job at the . . . for violation of the Hatch Act. I, therefore, did not use the certificate as I had intended. \"I believe that Congress may not constitutionally abridge my right to engage in the political activities mentioned above. However, unless the courts prevent the Civil Service Commission from enforcing this unconstitutional law, I will be unable freely to exercise my rights as a citizen.\" (Identifying words omitted.) [19] Correspondence & Public Papers of John Jay, Vol. 3, p. 486; Hayburn's Case and notes, 2 Dall. 409; Alabama v. Arizona, 291 U.S. 286, 291; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461. [20] Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419, 443; United States v. Appalachian Electric Power Co., 311 U.S. 377, 423; Alabama State Federation of Labor v. McAdory, supra, 461, and cases cited; Coffman v. Breeze Corporations, 323 U.S. 316, 324, and cases cited. [21] Altvater v. Freeman, 319 U.S. 359, 363. [22] It has long been this Court's \"considered practice not to decide abstract, hypothetical or contingent questions, . . . or to decide any constitutional question in advance of the necessity for its decision, . . . or to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, . . . or to decide any constitutional question except with reference to the particular facts to which it is to be applied, . . .\" Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, and cases cited. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129. [23] \"I have for a long time been interested in political activities. Both before and since my employment in the United States Mint, I have taken an active part in political campaigns and political management. In the 28th Ward, 7th Division in the City of Philadelphia I am and have been a Ward Executive Committeeman. In that position I have on many occasions taken an active part in political management and political campaigns. I have visited the residents of my Ward and solicited them to support my party and its candidates; I have acted as a watcher at the polls; I have contributed money to help pay its expenses; I have circulated campaign literature, placed banners and posters in public places, distributed leaflets, assisted in organizing political rallies and assemblies, and have done any and all acts which were asked of me in my capacity as a Ward Executive Committeeman. I have engaged in these activities both before and after my employment in the United States Mint. I intend to continue to engage in these activities on my own time as a private citizen, openly, freely, and without concealment.\n\"However, I have been served with a proposed order of the United States Civil Service Commission, dated January 12, 1944, which advises me that because of the political activities mentioned above, and for no other reason, `it is, . . ., the opinion of this Commission that George P. Poole, an employee of the United States Mint at Philadelphia, Pennsylvania, has been guilty of political activity in violation of Section 1, Civil Service Rule I' and that unless I can refute the charges that I have engaged in political activity, I will be dismissed from my position as a Roller in the United States Mint at Philadelphia, Pennsylvania.\" [24] The tentative charge and finding reads: I. \"It is charged: That . . . \"The said George P. Poole held the political party office of Democratic Ward Executive Committeeman in the City of Philadelphia, Pennsylvania. \"The said George P. Poole was politically active by aiding and assisting the Democratic Party in the capacity of worker at the polls on general election day, November 5, 1940, and assisted in the distribution of funds in paying party workers for their services on general election day, November 5, 1940.\" III. \"The above described activity constitutes taking an active part in political management and in a political campaign in contravention of Section 1, Civil Service Rule I, and the regulations adopted by the Commissioners thereunder.\" [25] Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273; Altvater v. Freeman, 319 U.S. 359, 364; Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 260. [26] 28 U.S.C. \u00a7 400: \"In cases of actual controversy except with respect to Federal taxes the courts of the United States shall have power upon petition, declaration, complaint, or other appropriate pleadings to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such.\" Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241; Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 264. [27] See White v. Berry, 171 U.S. 366, 377; In re Sawyer, 124 U.S. 200, 212. [*] In Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, a declaratory judgment proceeding, p. 46, prior to the adoption of Rule 57, a proceeding before the N.L.R.B. was required. There is statutory judicial review from that Board's decisions, however. [28] We agree with the Government that the complaint does not fail to state a cause of action against the Commission because it seeks relief against the Commission's action under the Hatch Act instead of Rule 1 of the Commission. So far as Poole's controversy is concerned, the act and the rule are the same. [29] In labor-management relationships, it has been recognized by this Court that circumstances might justify the prohibition by employers of union activity by employees on the employer's property, even though carried out during non-working hours. Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 803. [30] Chaplinsky v. New Hampshire, 315 U.S. 568, 571; Cantwell v. Connecticut, 310 U.S. 296, 304, 310; Schneider v. State, 308 U.S. 147, 165; De Jonge v. Oregon, 299 U.S. 353, 364; Cox v. New Hampshire, 312 U.S. 569, 574; Prince v. Massachusetts, 321 U.S. 158, 169; Reynolds v. United States, 98 U.S. 145. [31] 106 U.S. 376-77: \". . . every citizen having the proper qualifications has the right to accept office, and to be a candidate therefor. This is a fundamental right of which the legislature cannot deprive the citizen, nor clog its exercise with conditions that are repugnant to his other fundamental rights. Such a condition I regard that imposed by the law in question to be. It prevents the citizen from co-operating with other citizens of his own choice in the promotion of his political views. . . . The whole thing seems to me absurd. Neither men's mouths nor their purses can be constitutionally tied up in that way.\" [32] Kaplan, Political Neutrality of the Civil Service, 1 Pub. Pers. Rev. 10; White, Civil Service in the Modern State (1930); Mosher and Kingsley, Public Personnel Administration (1936); White, Government Career Service (1935); Meriam, Public Personnel Problems (1938).\nMilitary personnel is restricted in much the same manner. Army Regulations No. 600-10, p. 5: \"6. Political activities of persons in military service. \u2014 a. General. \u2014 No member of the Army, while on active duty, will use his official authority or influence for the purpose of interfering with an election or affecting the course or outcome thereof. Such persons, while on active duty, retain the right to vote, to express their opinions privately and informally on all political subjects and candidates, and to become candidates for public office as permitted in these regulations. They will not be permitted to participate in any way in political management or political campaigns.\" An interesting discussion of the general subject of interference by federal officers in elections will be found in the Appendix to the Congressional Globe, Dec. 3, 1838-Feb. 19, 1839, pp. 157, 160 and 409, 411. [33] 86 Cong. Rec. 2338-2367, 2426-2442, 2696-2723, 2920-2963, 2969-2987, 9360-9380, 9426-9432, 9434-9463. [34] Richardson, Messages and Papers of the Presidents (1897), Harrison, vol. IV, p. 52; id., Hayes, vol. VII, pp. 450-51. See note 4, supra.\nWhen in 1891 New Bedford, Mass., under a rule removed a policeman for political activity, an opinion by Mr. Justice, then Judge, Holmes disposed summarily of McAuliffe's contention that the rule invaded his right to express his political opinion with the epigram, \"The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.\" McAuliffe v. New Bedford, 155 Mass. 216, 220, 29 N.E. 517. [35] Several states have similar provisions. Ala. Code (1940), Tit. 12, \u00a7 157; Conn. Gen. Stat. (Supp. 1939), c. 105a \u00a7 698e; Ohio Gen. Code (Page, 1937), \u00a7 486-23; Pa. Stat. Ann. (Purdon, 1942), Tit. 71, \u00a7 741.904; R.I. Acts & Resolves, 1939, p. 118. [36] United States Civil Service Commission, Political Activity and Political Assessments, Form 1236, January 1944. [37] \"In the light of these wide variations in duties and responsibility for public policy and its fair enforcement, a restriction reasonably designed to preserve the impartiality of a Collector of the Revenue, a U.S. Marshal, an F.B.I. or Treasury agent may be utterly absurd and unjustified when applied to a lens grinder, a stock clerk, a machinist, or an elevator operator. It is therefore impossible both to observe reasonable regard for constitutional rights and to enact sweeping prohibitions as to political rights applicable to all Federal employees whatever the nature of their duties. In dealing with so complicated and varied a subject matter, a hatchet cannot readily be substituted for a scalpel.\" [38] United States Civil Service Commission, Political Activity and Political Assessments, Form 1236, September 1939: \"15. Committees. \u2014 Service on or for any political committee or similar organization is prohibited. . . . ..... \"20. Activity at the polls and for candidates. \u2014 . . . ..... \"It is the duty of an employee to avoid any offensive activity at primary and regular elections. He must refrain from soliciting votes, assisting voters to mark ballots, helping to get out the voters on registration and election days, acting as the accredited checker, watcher, or challenger of any party or faction, assisting in counting the vote, or engaging in any other activity at the polls except the marking and depositing of his own ballot.\" [39] United States v. Wurzbach, 280 U.S. 396, 399. [1] Those excepted are \"a part-time officer or part-time employee without compensation or with nominal compensation serving in connection with the existing war effort,\" commonly designated as \"Dollar-a-year men\" and \"(1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nation-wide administration of Federal laws.\" \u00a7 9a; 18 U.S.C. 61h (a), as amended. [2] \"Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person.\" \u00a7 9b; 18 U.S.C. 61h (b). [3] All state employees who work for any state agency financed in whole or in part by federal grants or loans are affected by the Act. Section 12a; 18 U.S.C. 61 l.\nIn 1945 the Federal Government paid $865,729,569.15 in grants in aid to states, Annual Report of the Secretary of the Treasury on the State of the Finances, for the fiscal year ended June 30, 1945 (1946) 714, and $688,506,157.11 in direct payments to states for the social security program, public roads and emergency maternity and infant care. Id. at 718. Grants to and expenditures within states, providing direct relief, work relief, and other aid such as the Agricultural Adjustment Program, National Housing Agency annual contributions, etc., totaled $1,353,427,735.68. Id. at 721. In July 1946 the number of persons employed by state and local governments totaled approximately 2,754,000 of whom 641,000 were employed in schools and 2,114,000 were non-school employees. Public Employment in July, 1946, Government Employment, Dept. of Commerce, Bureau of the Census, Vol. 7. No. 3 (1946) 1. A breakdown of county employees is a sample which suggests the proportion state and local whose salaries may be paid in whole or in part by federal funds thus coming under the provisions of this Act. Of a total of 310,000 non-school county employees in the entire country, 77,000 were employed in highway departments; 4,700 in natural resources; 12,600 in health and sanitation; 40,000 in hospitals; 22,000 in public welfare. County Employment in 1944, Government Employment, op. cit. supra, Vol. 5, No. 2 (1944) 7. [4] There are minor exceptions. One concession only is granted those federal employees who live \"in the immediate vicinity of the National Capital in the States of Maryland and Virginia or in municipalities the majority of whose voters are employed by the Government of the United States. . . .\" The Civil Service Commission may \"permit\" them to participate in campaigns involving the \"municipality or political subdivision\" in which they reside \"to the extent the Commission deems to be in [their] domestic interest. . . .\" Section 16; 18 U.S.C. 61p. A general exception permits participation (1) in an \"election and the preceding campaign if none of the candidates is to be nominated or elected . . . as representing a [political] party . . . (2) in connection with any question which is not specifically identified with any National or State political party. For the purposes of this section, questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character, shall not be deemed to be specifically identified with any National or State political party.\" \u00a7 18, 18 U.S.C. \u00a7 61r. The importance and number of political issues thus excepted, e.g. Sunday movies, local school bond issues, location of local parks, election of local officials in whom no political party is interested, are obviously very small. [5] Thornhill v. Alabama, 310 U.S. 88: Marsh v. Alabama, 326 U.S. 501; Bridges v. California, 314 U.S. 252, 260, 263. [6] Some states require that employers pay their employees for the time they spend away from work while voting. See People v. Ford Motor Co., 271 App. Div. 141, 63 N.Y.S.2d 697; Note, Pay While Voting, 47 Col. L. Rev. 135 (1947). [7] Many states have laws protecting non-government employees from employer interference with their voting independence. See Note, Pay While Voting, 47 Col. L. Rev. 135, 136, note 9 (1947). [8] See note 7, supra. [9] The Act, in fact, leaves free the higher officials whose positions give them the actual power to coerce subordinates and other citizens not employed by the Government. \u00a7 9a; 18 U.S.C. 61h. [1] Elkin, Senior Economic Statistician, Railroad Retirement Board; Abelson, Associate Financial Analyst, Social Security Board; Phillips, Labor Economist, War Shipping Administration; Mitchell, Wage Analyst, National War Labor Board; Fagan, Area Director, War Manpower Commission; Winegar, Senior Officer, Bureau of Prisons; Hindin, Procedural Assistant, Federal Security Agency; Rieck, Stock Clerk, Veterans Administration; Poole, Roller, United States Mint; Shane, Lens Grinder, Frankford Arsenal; Weber, Machinist Specialist, Frankford Arsenal; Tempest, Electric Welder, Philadelphia Navy Yard. [2] The case is, therefore, unlike those situations where the Court refused to entertain actions for declaratory judgments, the state of facts being hypothetical in the sense that the challenge was to statutes which had not as yet been construed or their specific application known. See Electric Bond & S. Co. v. Securities and Exchange Commission, 303 U.S. 419, 443; Alabama State Federation of Labor v. McAdory, 325 U.S. 450. [3] Where the legal remedy is adequate, it may be the more appropriate one. Thus in Coffman v. Breeze Corporations, supra, declaratory relief was denied a licensor of a patent who sued his licensee for an adjudication that the Royalty Adjustment Act was unconstitutional since it appeared that a suit to recover royalties was an adequate legal remedy and that the constitutional issues could be litigated there. [4] If the prayer for declaratory relief be considered separately from the prayer for an injunction, as it may be, allegations of irreparable injury threatened are not required. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241. [5] As stated in the Senate Report: \"The procedure has been especially useful in avoiding the necessity, now so often present, of having to act at one's peril or to act on one's own interpretation of his rights, or abandon one's rights because of a fear of incurring damages. So now it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial determination of its meaning or validity .. . So now it is often necessary to break a contract or a lease, or act upon one's own interpretation of his rights when disputed, in order to present to the court a justifiable [sic] controversy. In jurisdictions having the declaratory judgment procedure, it is not necessary to bring about such social and economic waste and destruction in order to obtain a determination of one's rights . . . There seems little question that in many situations in the conduct of business serious disputes occur between parties, where, if there were a possibility of obtaining a judicial declaration of rights in a formal action, much economic waste could be avoided and social peace promoted. Persons now often have to frequently avoided by the ability to sue for a declaratory judgment as to their rights or duties.\" S. Rep. No. 1005, 73d Cong., 2d Sess., pp. 2-3. And see Borchard, Declaratory Judgments (2d ed.) p. 4. [6] The case is therefore unlike one where the moving party shows no invasion of his legal rights but only possible injury to the public (Perkins v. Lukens Steel Co., 310 U.S. 113, 125) or one where no judicial remedy for the alleged wrong has been created. General Committee v. Missouri-K.-T.R. Co., 320 U.S. 323. [7] The following are cases in which the Court has allowed actions for declaratory judgments to be entertained: Aetna Life Ins. Co. v. Haworth, supra, where an insured claimed and the insurance company denied that he had become totally and permanently disabled and hence was relieved of the obligation to continue the payment of premiums; Currin v. Wallace, 306 U.S. 1, where tobacco warehousemen and auctioneers claimed the Tobacco Inspection Act was unconstitutional; Perkins v. Elg, supra, where one claiming to be a citizen was threatened with deportation as an alien and had been declined a passport on the same ground; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, where a third party was suing an insured and the insurer sought a judgment that it was not liable to defend the insured nor to indemnify the insured if the third party recovered; Altvater v. Freeman, 319 U.S. 359, where royalties were being demanded and paid under protest and by reason of an injunction; Mercoid Corp. v. Honeywell Co., 320 U.S. 680, where an alleged patent infringer sought a declaration of the invalidity of the patent; Tennessee Coal, I. & R. Co. v. Muscoda Local, 321 U.S. 590, where an employer sued representatives of its employees for an adjudication of whether portal-to-portal pay was due under the Fair Labor Standards Act; Hillsborough v. Cromwell, 326 U.S. 620, where a taxpayer sued in the federal court to have assessments declared invalid on the ground that they violated the Federal Constitution, the state remedy being inadequate to protect the federal right; Katzinger Co. v. Chicago Metallic Mfg. Co., 329 U.S. 394, where a licensee sought a declaration that he owed no royalties because of the invalidity of the patent; Order of Railway Conductors v. Swan, 329 U.S. 520, where it was sought to determine which division of the National Railroad Adjustment Board had jurisdiction over railroad yardmasters. Cf. Railway Mail Assn. v. Corsi, 326 U.S. 88, where a labor membership corporation, which did not admit negroes and was threatened with enforcement of a state statute declaring that practice of labor organizations unlawful, sued in a state court for an adjudication that the statute could not constitutionally be applied to it. [8] Report, Committee on Parliamentary, etc., Candidature of Crown Servants (1925), pp. 12, 13. [9] Wallas, Human Nature in Politics (2d ed.), p. 263. [10] Fish, The Civil Service and The Patronage (1905); Meriam, Public Personnel Problems (1938), ch. XI; Mosher & Kingsley, Public Personnel Administration (1941), ch. XVIII; Kingsley, Representative Bureaucracy (1944), ch. X; Morstein Marx, Public Management in the New Democracy (1940), ch. XIV; Field, Civil Service Law (1939), p. 196; Dawson, The Principle of Official Independence (1922), pp. 90 et seq.; Kaplan, Political Neutrality of the Civil Service, 1 Public Personnel Rev. 10; Chen, The Doctrine of Civil Service Neutrality in Party Conflicts in the United States and Great Britain (1937). [11] See Chen, op. cit. supra note 10, ch. I; Report of President's Committee on Civil Service Improvement, H. Doc. No. 118, 77th Cong., 1st Sess., ch. III. [12] See Morstein Marx, op. cit., supra, note 10, pp. 205-206; Report of the Committee on Parliamentary, etc., Candidature of Crown Servants, supra, note 8, p. 32; Finer, The British Civil Service (1937), pp. 203-204. [13] As stated in Morstein Marx, op. cit., supra, note 10, pp. 205-206: \"The political neutrality of a postal clerk, of a conductor on the city-owned subway system in New York, of a technician in the Chicago sanitary district, or of an artisan in the labor class, does not have the same significance as the political neutrality of the prominent section chiefs of the Department of State or the political neutrality of an assistant to a commissioner in a New York City department. No discussion of the problem which ignores the differences between categories of employees is anything but an academic consideration of the problem. Top official-dom has such marked opportunities of shaping policy that its political behavior must be so neutral as to raise no question of a divergence in point of view between it and the executive officers of government. It is quite proper, therefore, to require the most impeccable political neutrality from such officials. But the average or typical civil servant has no more opportunity in the sphere of policy making than does the average citizen. He is entrusted with a function ministerial in nature, a routine task almost wholly unaffected by his political point of view. This principle is recognized in the English rule that industrial workers in government employment may stand for election, a privilege denied administrative employees.\" [14] Whether the Act, being unconstitutional as applied to Poole, could be separably applied to civil service employees in other categories is a question I do not reach.","meta":{"dup_signals":{"dup_doc_count":1156,"dup_dump_count":90,"dup_details":{"2024-30":2,"2024-26":2,"2017-13":19,"2015-18":44,"2015-11":40,"2015-06":36,"2014-10":44,"2013-48":23,"2013-20":16,"2023-50":2,"2023-40":4,"2023-23":1,"2023-14":2,"2022-49":1,"2022-40":1,"2022-33":2,"2022-27":1,"2022-21":2,"2022-05":2,"2021-49":3,"2021-43":2,"2021-31":4,"2021-21":5,"2021-10":8,"2020-50":3,"2020-45":4,"2020-40":3,"2020-34":5,"2020-29":2,"2020-24":2,"2020-16":4,"2020-10":2,"2020-05":3,"2019-51":5,"2019-47":2,"2019-43":1,"2019-39":4,"2019-35":1,"2019-30":3,"2019-26":4,"2019-22":6,"2019-18":3,"2019-13":2,"2019-09":3,"2019-04":2,"2018-51":1,"2018-47":4,"2018-39":4,"2018-34":2,"2018-30":2,"2018-26":2,"2018-22":4,"2018-17":2,"2018-13":2,"2018-09":3,"2018-05":1,"2017-51":6,"2017-47":2,"2017-43":6,"2017-39":6,"2017-34":3,"2017-30":3,"2017-26":3,"2017-22":5,"2017-17":3,"2017-09":41,"2017-04":7,"2016-50":22,"2016-44":33,"2016-40":23,"2016-36":25,"2016-30":37,"2016-26":3,"2016-22":4,"2016-18":6,"2016-07":40,"2015-48":34,"2015-40":22,"2015-35":27,"2015-32":45,"2015-27":28,"2015-22":28,"2015-14":24,"2014-52":38,"2014-49":37,"2014-42":57,"2014-41":42,"2014-35":35,"2014-23":41,"2014-15":63}}},"subset":"freelaw"}
{"text":"Mr. Justice Holmes delivered the opinion of the court.\n\n This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, \u00a7 3, 40 Stat. 217, 219, by causing and attempt *49 ing to cause insubordination, &c., in the military and n\u00e1val forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants wilfully conspired to have printed and circulated to men who had been called and accepted for military.service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of tlie document set forth. The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transr mission of matter declared to be non-mailable by Title XII, \u00a7 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on \u00e1ll the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose.\n\n It is argued' that, the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printe4 on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribu tion. Schenck personally attended to the printing, Qrj .\n\n *50 August 20 the general secretary's report said \"Obtained new leaflets from printer and started work addressing envelopes\" &c.; and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed.. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired, to send the- documents only impairs the seriousness of the real defence.\n\n It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established.\n\n Adams v.\n\n New York, 192 U. S. 585; Weeks v.\n\n United States, 232 U. S. 383, 395, 396. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch Street and it would seem that the documents technically were not even in the defendants' possession. See Johnson v.\n\n United States, 228 U. S. 457. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding- is excluded in all pases by the Fifth Amendment is plainly unsound.\n\n Holt v.\n\n United States, 218 U. S. 245, 252, 253.\n\n The document in question upon its first printed side recited the first section of the Thirteenth Amendment, s\u00e1id that the idea embodied in it was violated by the Conscription Act and that a conscript is little better.than a *51 convict. In impassioned language it intimated.that conscription was despotism in its worst form arid a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said \"Do not submit to intimidation,\" but in form at least confined itself to peaceful measures such as a petition for the repeal of. the act. The other and later printed side of the sheet was headed \"Assert Your Rights.\" It stated reasons for alleging that any one violated the Constitution when he refused to recognize \"your right to assert your opposition to the draft,\" and went on \"If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.\" It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the. conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the. people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up \"You must do your share to maintain, support and uphold the rights of the people of this country.\" Of course\" the document would not have been sent unless it had been intended to have some effect, and we do not see what effect j it could be expected to have upon persons subject to the) draft except to influence them to obstruct the carrying of it out. The defendants do not. deny that the jury might find against them on this point.\n\n But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the *52 plain purpose, as intimated in Patterson v.\n\n Colorado, 205 U. S. 454, 462. We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.\n\n Aikens v.\n\n Wisconsin, 195 U. S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.\n\n Gompers v.\n\n Bucks Stove & Range Co., 221 U. S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to. create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When' a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It' seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in \u00a7 4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done \u00e1re the same, we perceive no ground for saying that success' alone warrants making the act a crime.\n\n Goldman v.\n\n United States, 245 U. S. 474, 477. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi.\n\n But as the right to free speech was not referred to specially, we have thought fit to \u00e1dd a few words.\n\n It was' not argued that a conspiracy to obstruct the draft was neb-within-u\u00f1e words of the Act of 1917. The *53 words are \"obstruct the recruiting o.r enlistment service,\" and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put. as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 10, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed. Rev. Stats., \u00a7 13.\n\n Judgments affirmed.","meta":{"dup_signals":{"dup_doc_count":1275,"dup_dump_count":99,"dup_details":{"2024-30":2,"2024-26":1,"2024-22":1,"2024-18":9,"2024-10":6,"2017-13":17,"2015-18":32,"2015-11":31,"2015-06":32,"2014-10":23,"2013-48":29,"2013-20":25,"2023-50":2,"2023-40":7,"2023-23":1,"2023-14":3,"2023-06":6,"2022-49":7,"2022-40":2,"2022-33":5,"2022-27":2,"2022-21":8,"2022-05":5,"2021-49":2,"2021-43":5,"2021-39":10,"2021-31":1,"2021-25":5,"2021-21":5,"2021-17":8,"2021-10":3,"2021-04":5,"2020-50":6,"2020-45":10,"2020-40":4,"2020-34":2,"2020-29":11,"2020-24":5,"2020-16":5,"2020-10":1,"2020-05":7,"2019-51":7,"2019-47":6,"2019-43":4,"2019-39":7,"2019-35":4,"2019-30":8,"2019-26":4,"2019-22":10,"2019-18":6,"2019-13":8,"2019-09":4,"2019-04":6,"2018-51":6,"2018-47":11,"2018-43":6,"2018-39":3,"2018-34":6,"2018-30":5,"2018-26":8,"2018-22":8,"2018-17":6,"2018-13":7,"2018-09":9,"2018-05":13,"2017-51":10,"2017-47":12,"2017-43":12,"2017-39":9,"2017-34":6,"2017-30":15,"2017-26":11,"2017-22":15,"2017-17":15,"2017-09":25,"2017-04":15,"2016-50":14,"2016-44":15,"2016-40":21,"2016-36":20,"2016-30":23,"2016-26":8,"2016-22":10,"2016-18":8,"2016-07":26,"2015-48":30,"2015-40":21,"2015-35":30,"2015-32":25,"2015-27":24,"2015-22":13,"2015-14":23,"2014-52":30,"2014-49":32,"2014-42":53,"2014-41":48,"2014-35":44,"2014-23":55,"2014-15":44}}},"subset":"freelaw"}
{"text":"397 U.S. 358 (1970) IN RE WINSHIP. No. 778. Supreme Court of United States. Argued January 20, 1970 Decided March 31, 1970 APPEAL FROM THE COURT OF APPEALS OF NEW YORK. Rena K. Uviller argued the cause for appellant. With her on the briefs was William E. Hellerstein. Stanley Buchsbaum argued the cause for the City of New York, appellee. With him on the brief was J. Lee Rankin. Marie S. Klooz filed a brief for the Neighborhood Legal Services Program of Washington, D. C., et al. as amici curiae urging reversal. Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Marie L. Marcus, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance. MR. JUSTICE BRENNAN delivered the opinion of the Court. Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage at \"which a determination is made as to *359 whether a juvenile is a `delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution.\" In re Gault, 387 U.S. 1, 13 (1967). Gault decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding the Due Process Clause does require application during the adjudicatory hearing of \" `the essentials of due process and fair treatment.' \" Id., at 30. This case presents the single, narrow question whether proof beyond a reasonable doubt is among the \"essentials of due process and fair treatment\" required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.[1] Section 712 of the New York Family Court Act defines a juvenile delinquent as \"a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime.\" During a 1967 adjudicatory hearing, conducted pursuant to \u00a7 742 of the Act, a judge in New York Family Court *360 found that appellant, then a 12-year-old boy, had entered a locker and stolen $112 from a woman's pocketbook. The petition which charged appellant with delinquency alleged that his act, \"if done by an adult, would constitute the crime or crimes of Larceny.\" The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant's contention that such proof was required by the Fourteenth Amendment. The judge relied instead on \u00a7 744 (b) of the New York Family Court Act which provides that \"[a]ny determination at the conclusion of [an adjudicatory] hearing that a [juvenile] did an act or acts must be based on a preponderance of the evidence.\"[2] During a subsequent dispositional hearing, appellant was ordered placed in a training school for an initial period of 18 months, subject to annual extensions of his commitment until his 18th birthday\u2014six years in appellant's case. The Appellate Division of the New York Supreme Court, First Judicial Department, affirmed without opinion, 30 A.D. 2d 781, 291 N. Y. S. 2d 1005 (1968). The New York Court of Appeals then affirmed by a four-to-three vote, expressly sustaining the constitutionality of \u00a7 744(b), 24 N.Y. 2d 196, 247 N.E.2d 253 (1969).[3]*361 We noted probable jurisdiction, 396 U.S. 885 (1969). We reverse.\nI The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The \"demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.\" C. McCormick, Evidence \u00a7 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence \u00a7 2497 (3d ed. 1940). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does \"reflect a profound judgment about the *362 way in which law should be enforced and justice administered.\" Duncan v. Louisiana, 391 U.S. 145, 155 (1968). Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Wilson v. United States, 232 U.S. 563, 569-570 (1914); Brinegar v. United States, 338 U.S. 160, 174 (1949); Leland v. Oregon, 343 U.S. 790, 795 (1952); Holland v. United States, 348 U.S. 121, 138 (1954); Speiser v. Randall, 357 U.S. 513, 525-526 (1958). Cf. Coffin v. United States, 156 U.S. 432 (1895). Mr. Justice Frankfurter stated that \"[i]t is the duty of the Government to establish . . . guilt beyond a reasonable doubt. This notion\u2014basic in our law and rightly one of the boasts of a free society\u2014is a requirement and a safeguard of due process of law in the historic, procedural content of `due process.' \" Leland v. Oregon, supra, at 802-803 (dissenting opinion). In a similar vein, the Court said in Brinegar v. United States, supra, at 174, that \"[g]uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.\" Davis v. United States, supra, at 488, stated that the requirement is implicit in \"constitutions. . . [which] recognize the fundamental principles that are deemed essential for the protection of life and liberty.\" In Davis a murder conviction was *363 reversed because the trial judge instructed the jury that it was their duty to convict when the evidence was equally balanced regarding the sanity of the accused. This Court said: \"On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime. . . . No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them . . . is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.\" Id., at 484, 493. The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence\u2014that bedrock \"axiomatic and elementary\" principle whose \"enforcement lies at the foundation of the administration of our criminal law.\" Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, \"a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.\" 24 N.Y. 2d, at 205, 247 N.E.2d, at 259. The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society *364 that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 525-526: \"There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value\u2014as a criminal defendant his liberty\u2014this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.\" To this end, the reasonable-doubt standard is indispensable, for it \"impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.\" Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967). Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.\n*365 II We turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. We do not find convincing the contrary arguments of the New York Court of Appeals. Gault rendered untenable much of the reasoning relied upon by that court to sustain the constitutionality of \u00a7 744 (b). The Court of Appeals indicated that a delinquency adjudication \"is not a `conviction' (\u00a7 781); that it affects no right or privilege, including the right to hold public office or to obtain a license (\u00a7 782); and a cloak of protective confidentiality is thrown around all the proceedings (\u00a7\u00a7 783-784).\" 24 N.Y. 2d, at 200, 247 N.E.2d, at 255-256. The court said further: \"The delinquency status is not made a crime; and the proceedings are not criminal. There is, hence, no deprivation of due process in the statutory provision [challenged by appellant] . . . .\" 24 N.Y. 2d, at 203, 247 N.E.2d, at 257. In effect the Court of Appeals distinguished the proceedings in question here from a criminal prosecution by use of what Gault called the \" `civil' label-of-convenience which has been attached to juvenile proceedings.\" 387 U.S., at 50. But Gault expressly rejected that distinction as a reason for holding the Due Process Clause inapplicable to a juvenile proceeding. 387 U.S., at 50-51. The Court of Appeals also attempted to justify the preponderance standard on the related ground that juvenile proceedings are designed \"not to punish, but to save the child.\" 24 N.Y. 2d, at 197, 247 N.E.2d, at 254. Again, however, Gault expressly rejected this justification. 387 U.S., at 27. We made clear in that decision that civil labels and good *366 intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for \"[a] proceeding where the issue is whether the child will be found to be `delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.\" Id., at 36. Nor do we perceive any merit in the argument that to afford juveniles the protection of proof beyond a reasonable doubt would risk destruction of beneficial aspects of the juvenile process.[4] Use of the reasonable-doubt standard during the adjudicatory hearing will not disturb New York's policies that a finding that a child has violated a criminal law does not constitute a criminal conviction, that such a finding does not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the factfinding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child's social history and for his individualized treatment will remain unimpaired. Similarly, there will be no effect on the procedures *367 distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing. The Court of Appeals observed that \"a child's best interest is not necessarily, or even probably, promoted if he wins in the particular inquiry which may bring him to the juvenile court.\" 24 N.Y. 2d, at 199, 247 N.E.2d, at 255. It is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention. But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law[5] and to the possibility of institutional confinement on proof insufficient to convict him were he an adult. We conclude, as we concluded regarding the essential due process safeguards applied in Gault, that the observance of the standard of proof beyond a reasonable doubt \"will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.\" Gault, supra, at 21. Finally, we reject the Court of Appeals' suggestion that there is, in any event, only a \"tenuous difference\" between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge's ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge's action evidences the accuracy of the observation of commentators that \"the preponderance test is susceptible to the misinterpretation *368 that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.\" Dorsen & Rezneck, supra, at 26-27.[6] III In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault\u2014notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, \"that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process . . . the case against him must be proved beyond a reasonable doubt.\" 24 N.Y. 2d, at 207, 247 N.E.2d, at 260. Reversed. MR. JUSTICE HARLAN, concurring. No one, I daresay, would contend that state juvenile court trials are subject to no federal constitutional limitations. Differences have existed, however, among the members of this Court as to what constitutional protections do apply. See In re Gault, 387 U.S. 1 (1967). *369 The present case draws in question the validity of a New York statute that permits a determination of juvenile delinquency, founded on a charge of criminal conduct, to be made on a standard of proof that is less rigorous than that which would obtain had the accused been tried for the same conduct in an ordinary criminal case. While I am in full agreement that this statutory provision offends the requirement of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment, I am constrained to add something to what my Brother BRENNAN has written for the Court, lest the true nature of the constitutional problem presented become obscured or the impact on state juvenile court systems of what the Court holds today be exaggerated.\nI Professor Wigmore, in discussing the various attempts by courts to define how convinced one must be to be convinced beyond a reasonable doubt, wryly observed: \"The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly . . . a sound method of self-analysis for one's belief,\" 9 J. Wigmore, Evidence 325 (3d ed. 1940).[1] Notwithstanding Professor Wigmore's skepticism, we have before us a case where the choice of the standard of proof has made a difference: the juvenile court judge below forthrightly acknowledged that he believed by a preponderance of the evidence, but was not convinced beyond a reasonable doubt, that appellant stole $112 from the complainant's pocketbook. Moreover, even though the labels used for alternative standards of proof are *370 vague and not a very sure guide to decisionmaking, the choice of the standard for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.[2] To explain why I think this so, I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the factfinder can acquire is a belief of what probably happened. The intensity of this belief\u2014the degree to which a factfinder is convinced that a given act actually occurred\u2014can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases \"preponderance of the evidence\" and \"proof beyond a reasonable doubt\" are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions. A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction *371 of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff's favor. The criminal analogue would be the acquittal of a guilty man. The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each. When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly,[3] it simply requires the trier of fact \"to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party *372 who has the burden to persuade the [judge] of the fact's existence.\"[4] In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. As MR. JUSTICE BRENNAN wrote for the Court in Speiser v. Randall, 357 U.S. 513, 525-526 (1958): \"There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value\u2014as a criminal defendant his liberty\u2014this margin of error is reduced as to him by the process of placing on the other party the burden . . . of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.\" In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness,[5] requires a more stringent standard for criminal trials than for ordinary civil litigation.\n*373 II When one assesses the consequences of an erroneous factual determination in a juvenile delinquency proceeding in which a youth is accused of a crime, I think it must be concluded that, while the consequences are *374 not identical to those in a criminal case, the differences will not support a distinction in the standard of proof. First, and of paramount importance, a factual error here, as in a criminal case, exposes the accused to a complete loss of his personal liberty through a state- imposed confinement away from his home, family, and friends. And, second, a delinquency determination, to some extent at least, stigmatizes a youth in that it is by definition bottomed on a finding that the accused committed a crime.[6] Although there are no doubt costs to society (and possibly even to the youth himself) in letting a guilty youth go free, I think here, as in a criminal case, it is far worse to declare an innocent youth a delinquent. I therefore agree that a juvenile court judge should be no less convinced of the factual conclusion that the accused committed the criminal act with which he is charged than would be required in a criminal trial.\nIII I wish to emphasize, as I did in my separate opinion in Gault, 387 U.S. 1, 65, that there is no automatic congruence *375 between the procedural requirements imposed by due process in a criminal case, and those imposed by due process in juvenile cases.[7] It is of great importance, in my view, that procedural strictures not be constitutionally imposed that jeopardize \"the essential elements of the State's purpose\" in creating juvenile courts, id., at 72. In this regard, I think it worth emphasizing that the requirement of proof beyond a reasonable doubt that a juvenile committed a criminal act before he is found to be a delinquent does not (1) interfere with the worthy goal of rehabilitating the juvenile, (2) make any significant difference in the extent to which a youth is stigmatized as a \"criminal\" because he has been found to be a delinquent, or (3) burden the juvenile courts with a procedural requirement that will make juvenile adjudications significantly more time consuming, or rigid. Today's decision simply requires a juvenile court judge to be more confident in his belief that the youth did the act with which he has been charged. With these observations, I join the Court's opinion, subject only to the constitutional reservations expressed in my opinion in Gault. MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE STEWART joins, dissenting. The Court's opinion today rests entirely on the assumption that all juvenile proceedings are \"criminal prosecutions,\" hence subject to constitutional limitations. This derives from earlier holdings, which, like today's *376 holding, were steps eroding the differences between juvenile courts and traditional criminal courts. The original concept of the juvenile court system was to provide a benevolent and less formal means than criminal courts could provide for dealing with the special and often sensitive problems of youthful offenders. Since I see no constitutional requirement of due process sufficient to overcome the legislative judgment of the States in this area, I dissent from further strait-jacketing of an already overly restricted system. What the juvenile court system needs is not more but less of the trappings of legal procedure and judicial formalism; the juvenile court system requires breathing room and flexibility in order to survive, if it can survive the repeated assaults from this Court. Much of the judicial attitude manifested by the Court's opinion today and earlier holdings in this field is really a protest against inadequate juvenile court staffs and facilities; we \"burn down the stable to get rid of the mice.\" The lack of support and the distressing growth of juvenile crime have combined to make for a literal breakdown in many if not most juvenile courts. Constitutional problems were not seen while those courts functioned in an atmosphere where juvenile judges were not crushed with an avalanche of cases. My hope is that today's decision will not spell the end of a generously conceived program of compassionate treatment intended to mitigate the rigors and trauma of exposing youthful offenders to a traditional criminal court; each step we take turns the clock back to the pre-juvenile-court era. I cannot regard it as a manifestation of progress to transform juvenile courts into criminal courts, which is what we are well on the way to accomplishing. We can only hope the legislative response will not reflect our own by having these courts abolished. *377 MR. JUSTICE BLACK, dissenting. The majority states that \"many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.\" Ante, at 362. I have joined in some of those opinions, as well as the dissenting opinion of Mr. Justice Frankfurter in Leland v. Oregon, 343 U.S. 790, 802 (1952). The Court has never clearly held, however, that proof beyond a reasonable doubt is either expressly or impliedly commanded by any provision of the Constitution. The Bill of Rights, which in my view is made fully applicable to the States by the Fourteenth Amendment, see Adamson v. California, 332 U.S. 46, 71-75 (1947) (dissenting opinion), does by express language provide for, among other things, a right to counsel in criminal trials, a right to indictment, and the right of a defendant to be informed of the nature of the charges against him.[1] And in two places the Constitution provides for trial by jury,[2] but nowhere in that document is there any statement that conviction of crime requires proof of guilt beyond a reasonable doubt. The Constitution thus goes into some detail to spell out what kind of trial a defendant charged with crime should have, and I believe the Court has no power to add to or subtract from the procedures set forth by the Founders. I realize that it is far easier to substitute individual judges' ideas of \"fairness\" for the fairness prescribed by the Constitution, but I shall not at any time surrender my belief that that document itself should be our guide, not our own concept of what is fair, decent, and right. That this old \"shock-the-conscience\" test is what the Court is relying on, rather than the words of the Constitution, *378 is clearly enough revealed by the reference of the majority to \"fair treatment\" and to the statement by the dissenting judges in the New York Court of Appeals that failure to require proof beyond a reasonable doubt amounts to a \"lack of fundamental fairness.\" Ante, at 359, 363. As I have said time and time again, I prefer to put my faith in the words of the written Constitution itself rather than to rely on the shifting, day-to-day standards of fairness of individual judges.\nI Our Constitution provides that no person shall be \"deprived of life, liberty, or property, without due process of law.\"[3] The four words\u2014due process of law\u2014have been the center of substantial legal debate over the years. See Chambers v. Florida, 309 U.S. 227, 235-236, and n. 8 (1940). Some might think that the words themselves are vague. But any possible ambiguity disappears when the phrase is viewed in the light of history and the accepted meaning of those words prior to and at the time our Constitution was written. \"Due process of law\" was originally used as a shorthand expression for governmental proceedings according to the \"law of the land\" as it existed at the time of those proceedings. Both phrases are derived from the laws of England and have traditionally been regarded as meaning the same thing. The Magna Carta provided that: \"No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise *379 destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land.\"[4] Later English statutes reinforced and confirmed these basic freedoms. In 1350 a statute declared that \"it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land . . . .\"[5] Four years later another statute provided \"[t]hat no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.\"[6] And in 1363 it was provided \"that no man be taken or imprisoned, nor put out of his freehold, without process of law.\"[7] Drawing on these and other sources, Lord Coke, in 1642, concluded that \"due process of law\" was synonymous with the phrase \"by law of the land.\"[8] One of the earliest cases in this Court to involve the interpretation of the Due Process Clause of the Fifth Amendment declared that \"[t]he words, `due process of law,' were undoubtedly intended to convey the same meaning as the words `by the law of the land' in Magna Charta.\" Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. 272, 276 (1856). While it is thus unmistakably clear that \"due process of law\" means according to \"the law of the land,\" this Court has not consistently defined what \"the law of the *380 land\" means and in my view members of this Court frequently continue to misconceive the correct interpretation of that phrase. In Murray's Lessee, supra, Mr. Justice Curtis, speaking for the Court, stated: \"The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process `due process of law,' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.\" Id., at 276-277.[9] Later in Twining v. New Jersey, 211 U.S. 78 (1908), Mr. Justice Moody, again speaking for the Court, reaffirmed that \"due process of law\" meant \"by law of the *381 land,\" but he went on to modify Mr. Justice Curtis' definition of the phrase. He stated: \"First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. . . . \"Second. It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straight-jacket, only to be unloosed by constitutional amendment. . . . \"Third. But, consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government.\" Id., at 100-101.[10] In those words is found the kernel of the \"natural law due process\" notion by which this Court frees itself from the limits of a written Constitution and sets itself loose to declare any law unconstitutional that \"shocks its conscience,\" deprives a person of \"fundamental fairness,\" or violates the principles \"implicit in the concept of *382 ordered liberty.\" See Rochin v. California, 342 U.S. 165, 172 (1952); Palko v. Connecticut, 302 U.S. 319, 325 (1937). While this approach has been frequently used in deciding so-called \"procedural\" questions, it has evolved into a device as easily invoked to declare invalid \"substantive\" laws that sufficiently shock the consciences of at least five members of this Court. See, e. g., Lochner v. New York, 198 U.S. 45 (1905); Coppage v. Kansas, 236 U.S. 1 (1915); Burns Baking Co. v. Bryan, 264 U.S. 504 (1924); Griswold v. Connecticut, 381 U.S. 479 (1965). I have set forth at length in prior opinions my own views that this concept is completely at odds with the basic principle that our Government is one of limited powers and that such an arrogation of unlimited authority by the judiciary cannot be supported by the language or the history of any provision of the Constitution. See, e. g., Adamson v. California, 332 U.S. 46, 68 (1947) (dissenting opinion); Griswold v. Connecticut, supra, at 507 (1965) (dissenting opinion). In my view both Mr. Justice Curtis and Mr. Justice Moody gave \"due process of law\" an unjustifiably broad interpretation. For me the only correct meaning of that phrase is that our Government must proceed according to the \"law of the land\"\u2014that is, according to written constitutional and statutory provisions as interpreted by court decisions. The Due Process Clause, in both the Fifth and Fourteenth Amendments, in and of itself does not add to those provisions, but in effect states that our governments are governments of law and constitutionally bound to act only according to law.[11] To some that view may seem a degrading and niggardly view of what is undoubtedly a fundamental part of our basic freedoms. *383 But that criticism fails to note the historical importance of our Constitution and the virtual revolution in the history of the government of nations that was achieved by forming a government that from the beginning had its limits of power set forth in one written document that *384 also made it abundantly clear that all governmental actions affecting life, liberty, and property were to be according to law. For years our ancestors had struggled in an attempt to bring England under one written constitution, consolidating in one place all the threads of the fundamental law of that nation. They almost succeeded in that attempt,[12] but it was not until after the American Revolution that men were able to achieve that long-sought goal. But the struggle had not been simply to put all the constitutional law in one document, it was also to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power. Our ancestors' ancestors had known the tyranny of the kings and the rule of man and it was, in my view, in order to insure against such actions that the Founders wrote into our own Magna Carta the fundamental principle of the rule of law, as expressed in the historically meaningful phrase \"due process of law.\" The many decisions of this Court that have found in that phrase a blanket authority to govern the country according to the views of at least five members of this institution have ignored the essential meaning of the very words they invoke. When this Court assumes for itself the power to declare any law\u2014state or federal\u2014unconstitutional because it offends the majority's own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the \"law of the land\" and instead becomes one governed ultimately by the \"law of the judges.\" It can be, and has been, argued that when this Court strikes down a legislative act because it offends the idea of \"fundamental fairness,\" it furthers the basic thrust of our Bill of Rights by protecting individual freedom. *385 But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people\u2014the right of each man to participate in the self-government of his society. Our Federal Government was set up as one of limited powers, but it was also given broad power to do all that was \"necessary and proper\" to carry out its basic purpose of governing the Nation, so long as those powers were not exercised contrary to the limitations set forth in the Constitution. And the States, to the extent they are not restrained by the provisions in that document, were to be left free to govern themselves in accordance with their own views of fairness and decency. Any legislature presumably passes a law because it thinks the end result will help more than hinder and will thus further the liberty of the society as a whole. The people, through their elected representatives, may of course be wrong in making those determinations, but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights. The liberty of government by the people, in my opinion, should never be denied by this Court except when the decision of the people as stated in laws passed by their chosen representatives, conflicts with the express or necessarily implied commands of our Constitution.\nII I admit a strong, persuasive argument can be made for a standard of proof beyond a reasonable doubt in criminal cases\u2014and the majority has made that argument well\u2014but it is not for me as a judge to say for that reason that Congress or the States are without constitutional power to establish another standard that the Constitution does not otherwise forbid. It is quite true that proof beyond a reasonable doubt has long been required in federal criminal trials. It is also true that *386 this requirement is almost universally found in the governing laws of the States. And as long as a particular jurisdiction requires proof beyond a reasonable doubt, then the Due Process Clause commands that every trial in that jurisdiction must adhere to that standard. See Turner v. United States, 396 U.S. 398, 430 (1970) (BLACK, J., dissenting). But when, as here, a State through its duly constituted legislative branch decides to apply a different standard, then that standard, unless it is otherwise unconstitutional, must be applied to insure that persons are treated according to the \"law of the land.\" The State of New York has made such a decision, and in my view nothing in the Due Process Clause invalidates it. NOTES [1] Thus, we do not see how it can be said in dissent that this opinion \"rests entirely on the assumption that all juvenile proceedings are `criminal prosecutions,' hence subject to constitutional limitations.\" As in Gault, \"we are not here concerned with . . . the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process.\" 387 U.S., at 13. In New York, the adjudicatory stage of a delinquency proceeding is clearly distinct from both the preliminary phase of the juvenile process and from its dispositional stage. See N. Y. Family Court Act \u00a7\u00a7 731-749. Similarly, we intimate no view concerning the constitutionality of the New York procedures governing children \"in need of supervision.\" See id., at \u00a7\u00a7 711-712, 742-745. Nor do we consider whether there are other \"essentials of due process and fair treatment\" required during the adjudicatory hearing of a delinquency proceeding. Finally, we have no occasion to consider appellant's argument that \u00a7 744 (b) is a violation of the Equal Protection Clause, as well as a denial of due process. [2] The ruling appears in the following portion of the hearing transcript: Counsel: \"Your Honor is making a finding by the preponderance of the evidence.\" Court: \"Well, it convinces me.\" Counsel: \"It's not beyond a reasonable doubt, Your Honor.\" Court: \"That is true . . . . Our statute says a preponderance and a preponderance it is.\" [3] Accord, e. g., In re Dennis M., 70 Cal. 2d 444, 450 P.2d 296 (1969); In re Ellis, 253 A.2d 789 (D. C. Ct. App. 1969); State v. Arenas, 253 Ore. 215, 453 P.2d 915 (1969); State v. Santana, 444 S.W.2d 614 (Texas 1969). Contra, United States v. Costanzo, 395 F.2d 441 (C. A. 4th Cir. 1968); In re Urbasek, 38 Ill. 2d 535, 232 N.E.2d 716 (1967); Jones v. Commonwealth, 185 Va. 335, 38 S.E.2d 444 (1946); N. D. Cent. Code \u00a7 27-20-29 (2) (Supp. 1969); Colo. Rev. Stat. Ann. \u00a7 22-3-6 (1) (1967); Md. Ann. Code, Art. 26, \u00a7 70-18 (a) (Supp. 1969); N. J. Ct. Rule 6:9 (1) (f) (1967); Wash. Sup. Ct., Juv. Ct. Rule \u00a7 4.4 (b) (1969); cf. In re Agler, 19 Ohio St. 2d 70, 249 N.E.2d 808 (1969).\nLegislative adoption of the reasonable-doubt standard has been urged by the National Conference of Commissioners on Uniform State Laws and by the Children's Bureau of the Department of Health, Education, and Welfare's Social and Rehabilitation Service. See Uniform Juvenile Court Act \u00a7 29 (b) (1968); Children's Bureau, Social and Rehabilitation Service, U. S. Department of Health, Education, and Welfare, Legislative Guide for Drafting Family and Juvenile Court Acts \u00a7 32 (c) (1969). Cf. the proposal of the National Council on Crime and Delinquency that a \"clear and convincing\" standard be adopted. Model Rules for Juvenile Courts, Rule 26, p. 57 (1969). See generally Cohen, The Standard of Proof in Juvenile Proceedings: Gault Beyond a Reasonable Doubt, 68 Mich. L. Rev. 567 (1970). [4] Appellee, New York City, apparently concedes as much in its Brief, page 8, where it states: \"A determination that the New York law unconstitutionally denies due process because it does not provide for use of the reasonable doubt standard probably would not have a serious impact if all that resulted would be a change in the quantum of proof.\" And Dorsen & Rezneck, supra, at 27, have observed: \"[T]he reasonable doubt test is superior to all others in protecting against an unjust adjudication of guilt, and that is as much a concern of the juvenile court as of the criminal court. It is difficult to see how the distinctive objectives of the juvenile court give rise to a legitimate institutional interest in finding a juvenile to have committed a violation of the criminal law on less evidence than if he were an adult.\" [5] The more comprehensive and effective the procedures used to prevent public disclosure of the finding, the less the danger of stigma. As we indicated in Gault, however, often the \"claim of secrecy . . . is more rhetoric than reality.\" 387 U.S., at 24. [6] Compare this Court's rejection of the preponderance standard in deportation proceedings, where we ruled that the Government must support its allegations with \"clear, unequivocal, and convincing evidence.\" Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 285 (1966). Although we ruled in Woodby that deportation is not tantamount to a criminal conviction, we found that since it could lead to \"drastic deprivations,\" it is impermissible for a person to be \"banished from this country upon no higher degree of proof than applies in a negligence case.\" Ibid. [1] See also Paulsen, Juvenile Courts and the Legacy of '67, 43 Ind. L. J. 527, 551-552 (1968). [2] For an interesting analysis of standards of proof see Kaplan, Decision Theory and the Factfinding Process, 20 Stan. L. Rev. 1065, 1071-1077 (1968). [3] The preponderance test has been criticized, justifiably in my view, when it is read as asking the trier of fact to weigh in some objective sense the quantity of evidence submitted by each side rather than asking him to decide what he believes most probably happened. See J. Maguire, Evidence, Common Sense and Common Law 180 (1947). [4] F. James, Civil Procedure 250-251 (1965); see E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 84-85 (1956). [5] In dissent my Brother BLACK again argues that, apart from the specific prohibitions of the first eight amendments, any procedure spelled out by a legislature\u2014no matter how unfair\u2014passes constitutional muster under the Due Process Clause. He bottoms his conclusion on history that he claims demonstrates (1) that due process means \"law of the land\"; (2) that any legislative enactment, ipso facto, is part of the law of the land; and (3) that the Fourteenth Amendment incorporates the prohibitions of the Bill of Rights and applies them to the States. I cannot refrain from expressing my continued bafflement at my Brother BLACK'S insistence that due process, whether under the Fourteenth Amendment or the Fifth Amendment, does not embody a concept of fundamental fairness as part of our scheme of constitutionally ordered liberty. His thesis flies in the face of a course of judicial history reflected in an unbroken line of opinions that have interpreted due process to impose restraints on the procedures government may adopt in its dealing with its citizens, see, e. g., the cases cited in my dissenting opinions in Poe v. Ullman, 367 U.S. 497, 522, 539-545 (1961); Duncan v. Louisiana, 391 U.S. 145, 171 (1968); as well as the uncontroverted scholarly research (notwithstanding H. Flack, The Adoption of the Fourteenth Amendment (1908)), respecting the intendment of the Due Process Clause of the Fourteenth Amendment, see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949). Indeed, with all respect, the very case cited in Brother BLACK'S dissent as establishing that \"due process of law\" means \"law of the land\" rejected the argument that any statute, by the mere process of enactment, met the requirements of the Due Process Clause. In Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. 272 (1856), an issue was whether a \"distress warrant\" issued by the Solicitor of the Treasury under an Act of Congress to collect money due for taxes offended the Due Process Clause. Justice Curtis wrote: \"That the warrant now in question is legal process, is not denied. It was issued in conformity with an act of Congress. But is it due process of law?' The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process `due process of law,' by its mere will.\" Id., at 276. (Emphasis supplied.) [6] The New York statute was amended to distinguish between a \"juvenile delinquent,\" i. e., a youth \"who does any act which, if done by an adult, would constitute a crime,\" N. Y. Family Court Act \u00a7 712 (1963), and a \"[p]erson in need of supervision\" [PINS] who is a person \"who is an habitual truant or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority.\" The PINS category was established in order to avoid the stigma of finding someone to be a \"juvenile delinquent\" unless he committed a criminal act. The Legislative Committee report stated: \" `Juvenile delinquent' is now a term of disapproval. The judges of the Children's Court and the Domestic Relations Court of course are aware of this and also aware that government officials and private employers often learn of an adjudication of delinquency.\" N. Y. Jt. Legislative Committee on Court Reorganization, The Family Court Act, pt. 2, p. 7 (1962). Moreover, the powers of the police and courts differ in these two categories of cases. See id., at 7-9. Thus, in a PINS type case, the consequences of an erroneous factual determination are by no means identical to those involved here. [7] In Gault, for example, I agreed with the majority that due process required (1) adequate notice of the \"nature and terms\" of the proceedings; (2) notice of the right to retain counsel, and an obligation on the State to provide counsel for indigents \"in cases in which the child may be confined\"; and (3) a written record \"adequate to permit effective review.\" 387 U.S., at 72. Unlike the majority, however, I thought it unnecessary at the time of Gault to impose the additional requirements of the privilege against self-incrimination, confrontation, and cross-examination. [1] Amdts. V, VI, U. S. Constitution. [2] Art. III, \u00a7 2, cl. 3; Amdt. VI, U. S. Constitution. [3] The Fifth Amendment applies this limitation to the Federal Government and the Fourteenth Amendment imposes the same restriction on the States. [4] 9 Hen. 3, c. 29 (1225). A similar provision appeared in c. 39 of the original issue signed by King John in 1215. [5] 25 Edw. Ch. 3, Stat. 5, c. IV. [6] 28 Edw. Ch. 3, c. III. [7] 37 Edw. Ch. 3, c. XVIII. [8] Coke's Institutes, Second Part, 50 (1st ed. 1642). [9] Cf. United States v. Hudson, 7 Cranch 32 (1812), in which the Court held that there was no jurisdiction in federal courts to try criminal charges based on the common law and that all federal crimes must be based on a statute of Congress. [10] Cf. the views of Mr. Justice Iredell in Calder v. Bull, 3 Dall. 386, 398 (1798). [11] It is not the Due Process Clause of the Fourteenth Amendment, standing alone, that requires my conclusion that that Amendment was intended to apply fully the protection of the Bill of Rights to actions by the States. That conclusion follows from the language of the entire first section of the Fourteenth Amendment, as illuminated by the legislative history surrounding its adoption. See Adamson v. California, supra, at 71-75, 92-123.\nMR. JUSTICE HARLAN continues to insist that uncontroverted scholarly research shows that the Fourteenth Amendment did not incorporate the Bill of Rights as limitations on the States. See Poe v. Ullman, 367 U.S. 497, 540 (1961) (dissenting opinion); Griswold v. Connecticut, supra, at 500 (concurring in judgment); ante, at 372-373, n. 5. I cannot understand that conclusion. Mr. Fairman, in the article repeatedly cited by MR. JUSTICE HARLAN, surveys the legislative history and concludes that it is his opinion that the amendment did not incorporate the Bill of Rights. Mr. Flack, in at least an equally \"scholarly\" writing, surveys substantially the same documents relied upon by Mr. Fairman and concludes that a prime objective of Congress in proposing the adoption of the Fourteenth Amendment was \"[t]o make the Bill of Rights (the first eight Amendments) binding upon, or applicable to, the States.\" Compare H. Flack, The Adoption of the Fourteenth Amendment 94 (1908), with Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949). It is, of course, significant that since the adoption of the Fourteenth Amendment this Court has held almost all the provisions of the Bill of Rights applicable to the States: the First Amendment, e. g., Gitlow v. New York, 268 U.S. 652 (1925), Cantwell v. Connecticut, 310 U.S. 296 (1940), Edwards v. South Carolina, 372 U.S. 229 (1963); the Fourth Amendment, Mapp v. Ohio, 367 U.S. 643 (1961); the Fifth Amendment, Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897), Malloy v. Hogan, 378 U.S. 1 (1964), Benton v. Maryland, 395 U.S. 784 (1969); the Sixth Amendment, Gideon v. Wainwright, 372 U.S. 335 (1963), Pointer v. Texas, 380 U.S. 400 (1965), Klopfer v. North Carolina, 386 U.S. 213 (1967), Duncan v. Louisiana, 391 U.S. 145 (1968); and the Eighth Amendment, Robinson v. California, 370 U.S. 660 (1962). To me this history indicates that in the end Mr. Flack's thesis has fared much better than Mr. Fairman's \"uncontroverted\" scholarship. [12] See J. Frank, The Levellers (1955).","meta":{"dup_signals":{"dup_doc_count":1165,"dup_dump_count":82,"dup_details":{"2023-50":2,"2023-40":3,"2023-23":3,"2023-14":3,"2022-49":2,"2022-40":2,"2022-33":2,"2022-27":1,"2022-21":5,"2022-05":2,"2021-49":3,"2021-43":1,"2021-39":4,"2021-31":1,"2021-21":5,"2021-17":1,"2021-10":5,"2021-04":3,"2020-50":2,"2020-45":3,"2020-40":5,"2020-34":1,"2020-29":6,"2020-24":1,"2020-16":4,"2020-10":1,"2020-05":5,"2019-51":3,"2019-47":5,"2019-43":1,"2019-39":5,"2019-35":3,"2019-30":4,"2019-26":4,"2019-22":7,"2019-18":5,"2019-13":4,"2019-09":2,"2019-04":6,"2018-51":2,"2018-47":2,"2018-43":6,"2018-34":6,"2018-26":4,"2018-22":1,"2018-17":1,"2018-13":4,"2018-09":3,"2018-05":4,"2017-51":1,"2017-47":2,"2017-43":10,"2017-39":9,"2017-34":2,"2017-30":5,"2017-22":13,"2017-17":5,"2017-09":50,"2017-04":7,"2016-50":8,"2016-44":17,"2016-40":18,"2016-36":17,"2016-30":18,"2016-26":2,"2016-22":4,"2016-18":4,"2016-07":46,"2015-48":49,"2015-40":27,"2015-35":43,"2015-32":47,"2015-27":39,"2015-22":17,"2015-14":47,"2014-52":50,"2014-49":64,"2014-42":94,"2014-41":73,"2014-35":70,"2014-23":72,"2014-15":77}}},"subset":"freelaw"}
{"text":"163 U.S. 537 (1896) PLESSY\n v.\n FERGUSON. No. 210. Supreme Court of United States. Argued April 13, 1896. Decided May 18, 1896.\n ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.\n *540 Mr. A.W. Tourgee and Mr. S.F. Phillips for plaintiff in error. Mr. F.D. McKenney was on Mr. Phillips's brief. Mr. James C. Walker filed a brief for plaintiff in error. Mr. Alexander Porter Morse for defendant in error. Mr. M.J. Cunningham, Attorney General of the State of Louisiana, and Mr. Lional Adams were on his brief. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152. The first section of the statute enacts \"that all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No person or persons, shall be admitted to occupy seats in coaches, other than, the ones, assigned, to them on account of the race they belong to.\" By the second section it was enacted \"that the officers of such passenger trains shall have power and are hereby required *541 to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State.\" The third section provides penalties for the refusal or neglect of the officers, directors, conductors and employ\u00e9s of railway companies to comply with the act, with a proviso that \"nothing in this act shall be construed as applying to nurses attending children of the other race.\" The fourth section is immaterial. The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred. The petition for the writ of prohibition averred that petitioner was seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate *542 said coach and take a seat in another assigned to persons of the colored race, and having refused to comply with such demand he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act. The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States. 1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude \u2014 a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services. This amendment was said in the Slaughter-house cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word \"servitude\" was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency. So, too, in the Civil Rights cases, 109 U.S. 3, 24, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but *543 only as involving an ordinary civil injury, properly cognizable by the laws of the State, and presumably subject to redress by those laws until the contrary appears. \"It would be running the slavery argument into the ground,\" said Mr. Justice Bradley, \"to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.\" A statute which implies merely a legal distinction between the white and colored races \u2014 a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color \u2014 has no tendency to destroy the legal equality of the two races, or re\u00ebstablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection. 2. By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the State wherein they reside; and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws. The proper construction of this amendment was first called to the attention of this court in the Slaughter-house cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro; to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States. *544 The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced. One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. \"The great principle,\" said Chief Justice Shaw, p. 206, \"advanced by the learned and eloquent advocate for the plaintiff,\" (Mr. Charles Sumner,) \"is, that by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law... . But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.\" It was held that the powers of the committee extended to the establishment *545 of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia, Rev. Stat. D.C. \u00a7\u00a7 281, 282, 283, 310, 319, as well as by the legislatures of many of the States, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 198; Lehew v. Brummell, 15 S.W. Rep. 765; Ward v. Flood, 48 California, 36; Bertonneau v. School Directors, 3 Woods, 177; People v. Gallagher, 93 N.Y. 438; Cory v. Carter, 48 Indiana, 327; Dawson v. Lee, 83 Kentucky, 49. Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State. State v. Gibson, 36 Indiana, 389. The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus in Strauder v. West Virginia, 100 U.S. 303, it was held that a law of West Virginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. Virginia v. Rives, 100 U.S. 313; Neal v. Delaware, 103 U.S. 370; Bush v. Kentucky, 107 U.S. 110; Gibson v. Mississippi, 162 U.S. 565. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of *546 color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company's providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Company v. Brown, 17 Wall. 445. Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the States to give to all persons travelling within that State, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel, who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U.S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the States. In the Civil Rights case, 109 U.S. 3, it was held that an act of Congress, entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances, on land or water, theatres and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the Fourteenth Amendment was prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the States were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counteracting and redressing the effect of such laws or acts. In delivering the opinion of the court Mr. Justice Bradley observed that the Fourteenth Amendment \"does not invest Congress with power to legislate upon subjects that are within the *547 domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.\" Much nearer, and, indeed, almost directly in point, is the case of the Louisville, New Orleans &c. Railway v. Mississippi, 133 U.S. 587, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the Supreme Court of Mississippi, 66 Mississippi, 662, had held that the statute applied solely to commerce within the State, and, that being the construction of the state statute by its highest court, was accepted as conclusive. \"If it be a matter,\" said the court, p. 591, \"respecting commerce wholly within a State, and not interfering with commerce between the States, then, obviously, there is no violation of the commerce clause of the Federal Constitution... . No question arises under this section, as to the power of the State to separate in different compartments interstate passengers, *548 or affect, in any manner, the privileges and rights of such passengers. All that we can consider is, whether the State has the power to require that railroad trains within her limits shall have separate accommodations for the two races; that affecting only commerce within the State is no invasion of the power given to Congress by the commerce clause.\" A like course of reasoning applies to the case under consideration, since the Supreme Court of Louisiana in the case of the State ex rel. Abbott v. Hicks, Judge, et al., 44 La. Ann. 770, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers travelling exclusively within the borders of the State. The case was decided largely upon the authority of Railway Co. v. State, 66 Mississippi, 662, and affirmed by this court in 133 U.S. 587. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the State of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in West Chester &c. Railroad v. Miles, 55 Penn. St. 209; Day v. Owen, 5 Michigan, 520; Chicago &c. Railway v. Williams, 55 Illinois, 185; Chesapeake &c. Railroad v. Wells, 85 Tennessee, 613; Memphis &c. Railroad v. Benson, 85 Tennessee, 627; The Sue, 22 Fed. Rep. 843; Logwood v. Memphis &c. Railroad, 23 Fed. Rep. 318; McGuinn v. Forbes, 37 Fed. Rep. 639; People v. King, 18 N.E. Rep. 245; Houck v. South Pac. Railway, 38 Fed. Rep. 226; Heard v. Georgia Railroad Co., 3 Int. Com. Com'n, 111; S.C., 1 Ibid. 428. While we think the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act, that denies to the passenger compensation *549 in damages for a refusal to receive him into the coach in which he properly belongs, is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the State's attorney, that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular State, is to be deemed a white, and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race. It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property, in the same sense that a right of action, or of inheritance, is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man. In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side *550 of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class. Thus in Yick Wo v. Hopkins, 118 U.S. 356, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the Constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying, or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Company v. Husen, 95 U.S. 465; Louisville & Nashville Railroad v. Kentucky, 161 U.S. 677, and cases cited on p. 700; Daggett v. Hudson, 43 Ohio St. 548; Capen v. Foster, 12 Pick. 485; State ex rel. Wood v. Baker, 38 Wisconsin, 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v. Rems, 41 Penn. St. 396; Orman v. Riley, 15 California, 48. So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances *551 is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures. We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N.Y. 438, 448, \"this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed.\" Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly *552 or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race, (State v. Chavers, 5 Jones, [N.C.] 1, p. 11); others that it depends upon the preponderance of blood, (Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three fourths. (People v. Dean, 14 Michigan, 406; Jones v. Commonwealth, 80 Virginia, 538.) But these are questions to be determined under the laws of each State and are not properly put in issue in this case. Under the allegations of his petition it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race. The judgment of the court below is, therefore, Affirmed. MR. JUSTICE HARLAN dissenting. By the Louisiana statute, the validity of which is here involved, all railway companies (other than street railroad companies) carrying passengers in that State are required to have separate but equal accommodations for white and colored persons, \"by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.\" Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person, to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, *553 he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors and employ\u00e9s of railroad companies to comply with the provisions of the act. Only \"nurses attending children of the other race\" are excepted from the operation of the statute. No exception is made of colored attendants travelling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant, personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while travelling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty. While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act, \"white and colored races,\" necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race. Thus the State regulates the use of a public highway by citizens of the United States solely upon the basis of race. However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States. That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise \"of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.\" Mr. Justice Strong, delivering the judgment of *554 this court in Olcott v. The Supervisors, 16 Wall. 678, 694, said: \"That railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a State's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use?\" So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: \"Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the State.\" So, in Inhabitants of Worcester v. Western Railroad Corporation, 4 Met. 564: \"The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike or highway, a public easement.\" It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation; but it is in trust for the public.\" In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the *555 race of citizens when the civil rights of those citizens are involved. Indeed, such legislation, as that here in question, is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States. The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that \"all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,\" and that \"no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.\" These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that \"the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.\" These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure \"to a race recently emancipated, a race that through *556 many generations have been held in slavery, all the civil rights that the superior race enjoy.\" They declared, in legal effect, this court has further said, \"that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.\" We also said: \"The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race \u2014 the right to exemption from unfriendly legislation against them distinctively as colored \u2014 exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.\" It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race and however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment. Strauder v. West Virginia, 100 U.S. 303, 306, 307; Virginia v. Rives, 100 U.S. 313; Ex parte Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 370, 386; Bush v. Kentucky, 107 U.S. 110, 116. At the present term, referring to the previous adjudications, this court declared that \"underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government or the States against any citizen because of his race. All citizens are equal before the law.\" Gibson v. Mississippi, 162 U.S. 565. The decisions referred to show the scope of the recent amendments of the Constitution. They also show that it is not within the power of a State to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice. It was said in argument that the statute of Louisiana does *557 not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. \"Personal liberty,\" it has been well said, \"consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law.\" 1 Bl. Com. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each. It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from travelling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road *558 or street? Why may it not require sheriffs to assign whites to one side of a court-room and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics? The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that the legislative intention being clearly ascertained, \"the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.\" Stat. & Const. Constr. 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co\u00f6rdinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legislative *559 will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent. The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word \"citizens\" in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that at the time of the adoption of the Constitution they were \"considered as a subordinate and inferior class of beings, who had been subjugated by the dominant *560 race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.\" 19 How. 393, 404. The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race \u2014 a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race. State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the *561 war, under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when travelling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting. There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race, if his rights under the law were recognized. But he objects, and ought never to cease objecting to the proposition, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway. *562 The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds. If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of \"equal\" accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done. The result of the whole matter is, that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a State cannot, consistently with the Constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a State may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a \"partition,\" when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperilled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a \"partition,\" and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a moveable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the \"partition\" used in the court room happens to be stationary, provision could be made for screens with openings through *563 which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating citizens of the United States of a particular race, would be held to be consistent with the Constitution. I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them are wholly inapplicable, because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law. I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community called the *564 People of the United States, for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority. MR. JUSTICE BREWER did not hear the argument or participate in the decision of this case.","meta":{"dup_signals":{"dup_doc_count":2050,"dup_dump_count":99,"dup_details":{"2024-30":6,"2024-26":7,"2024-22":3,"2024-18":6,"2024-10":6,"2017-13":33,"2015-18":47,"2015-11":34,"2015-06":44,"2014-10":30,"2013-48":30,"2013-20":31,"2023-50":8,"2023-40":8,"2023-23":6,"2023-14":4,"2023-06":6,"2022-49":12,"2022-40":5,"2022-33":12,"2022-27":9,"2022-21":8,"2022-05":4,"2021-49":4,"2021-43":4,"2021-39":8,"2021-31":11,"2021-25":5,"2021-21":8,"2021-17":17,"2021-10":12,"2021-04":15,"2020-50":10,"2020-45":13,"2020-40":15,"2020-34":10,"2020-29":14,"2020-24":10,"2020-16":16,"2020-10":8,"2020-05":12,"2019-51":7,"2019-47":4,"2019-43":6,"2019-39":11,"2019-35":8,"2019-30":4,"2019-26":8,"2019-22":6,"2019-18":8,"2019-13":3,"2019-09":11,"2019-04":6,"2018-51":6,"2018-47":12,"2018-43":13,"2018-39":7,"2018-34":10,"2018-30":13,"2018-26":12,"2018-22":11,"2018-17":12,"2018-13":10,"2018-09":22,"2018-05":24,"2017-51":16,"2017-47":26,"2017-43":26,"2017-39":28,"2017-34":14,"2017-30":22,"2017-26":17,"2017-22":26,"2017-17":23,"2017-09":57,"2017-04":24,"2016-50":33,"2016-44":35,"2016-40":34,"2016-36":34,"2016-30":51,"2016-26":12,"2016-22":14,"2016-18":15,"2016-07":44,"2015-48":46,"2015-40":32,"2015-35":42,"2015-32":48,"2015-27":38,"2015-22":26,"2015-14":38,"2014-52":51,"2014-49":56,"2014-42":85,"2014-41":65,"2014-35":62,"2014-23":66,"2014-15":59}}},"subset":"freelaw"}
{"text":"330 U.S. 1 (1947) EVERSON v. BOARD OF EDUCATION OF THE TOWNSHIP OF EWING ET AL. No. 52. Supreme Court of United States. Argued November 20, 1946. Decided February 10, 1947. APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY. *2 Edward R. Burke and E. Hilton Jackson argued the cause for appellant. With Mr. Burke on the brief were Challen B. Ellis, W.D. Jamieson and Kahl K. Spriggs. William H. Speer argued the cause for appellees. With him on the brief were Porter R. Chandler and Roger R. Clisham. Briefs of amici curiae in support of appellant were filed by E. Hilton Jackson for the General Conference of Seventh-Day Adventists et al.; by Harry V. Osborne, Kenneth W. Greenawalt and Whitney N. Seymour for the American Civil Liberties Union; and by Milton T. Lasher for the State Council of the Junior Order of United American Mechanics of New Jersey. Briefs of amici curiae in support of appellees were filed by George F. Barrett, Attorney General of Illinois, William C. Wines, Assistant Attorney General of Illinois, and James A. Emmert, Attorney General of Indiana, for the States of Illinois and Indiana; by Fred S. LeBlanc, Attorney General, for the State of Louisiana; by Clarence A. Barnes, Attorney General, for the Commonwealth of Massachusetts; by Edmund E. Shepherd, Solicitor General, and Daniel J. O'Hara, Assistant Attorney General, for the *3 State of Michigan; by Nathaniel L. Goldstein, Attorney General, and Wendell P. Brown, Solicitor General, for the State of New York; and by James N. Vaughn and George E. Flood for the National Council of Catholic Men et al. MR. JUSTICE BLACK delivered the opinion of the Court. A New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to and from schools.[1] The appellee, a township board of education, acting pursuant to this statute, authorized reimbursement to parents of money expended by them for the bus transportation of their children on regular busses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. These church schools give their students, in addition to secular education, regular religious instruction conforming to the religious tenets and modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest. The appellant, in his capacity as a district taxpayer, filed suit in a state court challenging the right of the Board to reimburse parents of parochial school students. He *4 contended that the statute and the resolution passed pursuant to it violated both the State and the Federal Constitutions. That court held that the legislature was without power to authorize such payment under the state constitution. 132 N.J.L. 98. 39 A.2d 75. The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor the resolution passed pursuant to it was in conflict with the State constitution or the provisions of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d 333. The case is here on appeal under 28 U.S.C. \u00a7 344 (a). Since there has been no attack on the statute on the ground that a part of its language excludes children attending private schools operated for profit from enjoying State payment for their transportation, we need not consider this exclusionary language; it has no relevancy to any constitutional question here presented.[2] Furthermore, if the exclusion clause had been properly challenged, we do not know whether New Jersey's highest court would construe its statutes as precluding payment of the school *5 transportation of any group of pupils, even those of a private school run for profit.[3] Consequently, we put to one side the question as to the validity of the statute against the claim that it does not authorize payment for the transportation generally of school children in New Jersey. The only contention here is that the state statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects, which to some extent overlap. First. They authorize the State to take by taxation the private property of some and bestow it upon others, to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment. Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of state power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states. First. The due process argument that the state law taxes some people to help others carry out their private *6 purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public's interest in the general education of all children. This argument, if valid, would apply equally to prohibit state payment for the transportation of children to any non-public school, whether operated by a church or any other non-government individual or group. But, the New Jersey legislature has decided that a public purpose will be served by using tax-raised funds to pay the bus fares of all school children, including those who attend parochial schools. The New Jersey Court of Errors and Appeals has reached the same conclusion. The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need. It is true that this Court has, in rare instances, struck down state statutes on the ground that the purpose for which tax-raised funds were to be expended was not a public one. Loan Association v. Topeka, 20 Wall. 655; Parkersburg v. Brown, 106 U.S. 487; Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55. But the Court has also pointed out that this far-reaching authority must be exercised with the most extreme caution. Green v. Frazier, 253 U.S. 233, 240. Otherwise, a state's power to legislate for the public welfare might be seriously curtailed, a power which is a primary reason for the existence of states. Changing local conditions create new local problems which may lead a state's people and its local authorities to believe that laws authorizing new types of public services are necessary to promote the general well-being *7 of the people. The Fourteenth Amendment did not strip the states of their power to meet problems previously left for individual solution. Davidson v. New Orleans, 96 U.S. 97, 103-104; Barbier v. Connolly, 113 U.S. 27, 31-32; Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 157-158. It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose. Cochran v. Louisiana State Board of Education, 281 U.S. 370; Holmes, J., in Interstate Ry. v. Massachusetts, 207 U.S. 79, 87. See opinion of Cooley, J., in Stuart v. School District No. 1 of Kalamazoo, 30 Mich. 69 (1874). The same thing is no less true of legislation to reimburse needy parents, or all parents, for payment of the fares of their children so that they can ride in public busses to and from schools rather than run the risk of traffic and other hazards incident to walking or \"hitchhiking.\" See Barbier v. Connolly, supra, at 31. See also cases collected 63 A.L.R. 413; 118 A.L.R. 806. Nor does it follow that a law has a private rather than a public purpose because it provides that tax-raised funds will be paid to reimburse individuals on account of money spent by them in a way which furthers a public program. See Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 518. Subsidies and loans to individuals such as farmers and home-owners, and to privately owned transportation systems, as well as many other kinds of businesses, have been commonplace practices in our state and national history. Insofar as the second phase of the due process argument may differ from the first, it is by suggesting that taxation for transportation of children to church schools constitutes support of a religion by the State. But if the law is invalid for this reason, it is because it violates the First Amendment's prohibition against the establishment of religion *8 by law. This is the exact question raised by appellant's second contention, to consideration of which we now turn. Second. The New Jersey statute is challenged as a \"law respecting an establishment of religion.\" The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U.S. 105, commands that a state \"shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .\" These words of the First Amendment reflected in the minds of early Americans a vivid mental picture of conditions and practices which they fervently wished to stamp out in order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been entirely reached; but so far has the Nation moved toward it that the expression \"law respecting an establishment of religion,\" probably does not so vividly remind present-day Americans of the evils, fears, and political problems that caused that expression to be written into our Bill of Rights. Whether this New Jersey law is one respecting an \"establishment of religion\" requires an understanding of the meaning of that language, particularly with respect to the imposition of taxes. Once again,[4] therefore, it is not inappropriate briefly to review the background and environment of the period in which that constitutional language was fashioned and adopted. A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to *9 maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.[5] These practices of the old world were transplanted to and began to thrive in the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or non-believers, would be required to support and attend.[6] An exercise of *10 this authority was accompanied by a repetition of many of the old-world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated.[7] And all of these dissenters were compelled to pay tithes and taxes[8] to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters. *11 These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence.[9] The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation.[10] It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group. The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the Virginia legislative body was about to renew Virginia's tax levy for the support of the established church. Thomas Jefferson *12 and James Madison led the fight against this tax. Madison wrote his great Memorial and Remonstrance against the law.[11] In it, he eloquently argued that a true religion did not need the support of law; that no person, either believer or non-believer, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result of government-established religions. Madison's Remonstrance received strong support throughout Virginia,[12] and the Assembly postponed consideration of the proposed tax measure until its next session. When the proposal came up for consideration at that session, it not only died in committee, but the Assembly enacted the famous \"Virginia Bill for Religious Liberty\" originally written by Thomas Jefferson.[13] The preamble to that Bill stated among other things that \"Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are *13 a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either . ..; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern. . . .\" And the statute itself enacted \"That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . .\"[14] This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute. Reynolds v. United States, supra at 164; Watson v. Jones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333, 342. Prior to the adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against the states.[15] Most of them did soon provide similar constitutional protections *14 for religious liberty.[16] But some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups.[17] In recent years, so far as the provision against the establishment of a religion is concerned, the question has most frequently arisen in connection with proposed state aid to church schools and efforts to carry on religious teachings in the public schools in accordance with the tenets of a particular sect.[18] Some churches have either sought or accepted state financial support for their schools. Here again the efforts to obtain state aid or acceptance of it have not been limited to any one particular faith.[19] The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religious and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion.[20] The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it *15 was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth.[21] The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom.[22] There is every reason to give the same application and broad interpretation to the \"establishment of religion\" clause. The interrelation of these complementary clauses was well summarized in a statement of the Court of Appeals of South Carolina,[23] quoted with approval by this Court in Watson v. Jones, 13 Wall. 679, 730: \"The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.\" The \"establishment of religion\" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining *16 or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect \"a wall of separation between church and State.\" Reynolds v. United States, supra at 164. We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the State's constitutional power even though it approaches the verge of that power. See Interstate Ry. v. Massachusetts, Holmes, J., supra at 85, 88. New Jersey cannot consistently with the \"establishment of religion\" clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief. *17 Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State. The same possibility exists where the state requires a local transit company to provide reduced fares to school children including those attending parochial schools,[24] or where a municipally owned transportation system undertakes to carry all school children free of charge. Moreover, state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children's welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public *18 highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them. This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious rather than a public school if the school meets the secular educational requirements which the state has power to impose. See Pierce v. Society of Sisters, 268 U.S. 510. It appears that these parochial schools meet New Jersey's requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools. The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here. Affirmed. MR. JUSTICE JACKSON, dissenting. I find myself, contrary to first impressions, unable to join in this decision. I have a sympathy, though it is not ideological, with Catholic citizens who are compelled by law to pay taxes for public schools, and also feel constrained by conscience and discipline to support other schools for their own children. Such relief to them as *19 this case involves is not in itself a serious burden to taxpayers and I had assumed it to be as little serious in principle. Study of this case convinces me otherwise. The Court's opinion marshals every argument in favor of state aid and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, \"whispering `I will ne'er consent,' \u2014 consented.\" I. The Court sustains this legislation by assuming two deviations from the facts of this particular case; first, it assumes a state of facts the record does not support, and secondly, it refuses to consider facts which are inescapable on the record. The Court concludes that this \"legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools,\" and it draws a comparison between \"state provisions intended to guarantee free transportation\" for school children with services such as police and fire protection, and implies that we are here dealing with \"laws authorizing new types of public services. . . .\" This hypothesis permeates the opinion. The facts will not bear that construction. The Township of Ewing is not furnishing transportation to the children in any form; it is not operating school busses itself or contracting for their operation; and it is not performing any public service of any kind with this *20 taxpayer's money. All school children are left to ride as ordinary paying passengers on the regular busses operated by the public transportation system. What the Township does, and what the taxpayer complains of, is at stated intervals to reimburse parents for the fares paid, provided the children attend either public schools or Catholic Church schools. This expenditure of tax funds has no possible effect on the child's safety or expedition in transit. As passengers on the public busses they travel as fast and no faster, and are as safe and no safer, since their parents are reimbursed as before. In addition to thus assuming a type of service that does not exist, the Court also insists that we must close our eyes to a discrimination which does exist. The resolution which authorizes disbursement of this taxpayer's money limits reimbursement to those who attend public schools and Catholic schools. That is the way the Act is applied to this taxpayer. The New Jersey Act in question makes the character of the school, not the needs of the children, determine the eligibility of parents to reimbursement. The Act permits payment for transportation to parochial schools or public school but prohibits it to private schools operated in whole or in part for profit. Children often are sent to private schools because their parents feel that they require more individual instruction than public schools can provide, or because they are backward or defective and need special attention. If all children of the state were objects of impartial solicitude, no reason is obvious for denying transportation reimbursement to students of this class, for these often are as needy and as worthy as those who go to public or parochial schools. Refusal to reimburse those who attend such schools is understandable only in the light of a purpose to aid the schools, because the state might well abstain from aiding a profit-making private enterprise. Thus, under the Act *21 and resolution brought to us by this case, children are classified according to the schools they attend and are to be aided if they attend the public schools or private Catholic schools, and they are not allowed to be aided if they attend private secular schools or private religious schools of other faiths. Of course, this case is not one of a Baptist or a Jew or an Episcopalian or a pupil of a private school complaining of discrimination. It is one of a taxpayer urging that he is being taxed for an unconstitutional purpose. I think he is entitled to have us consider the Act just as it is written. The statement by the New Jersey court that it holds the Legislature may authorize use of local funds \"for the transportation of pupils to any school,\" 133 N.J.L. 350, 354, 44 A.2d 333, 337, in view of the other constitutional views expressed, is not a holding that this Act authorizes transportation of all pupils to all schools. As applied to this taxpayer by the action he complains of, certainly the Act does not authorize reimbursement to those who choose any alternative to the public school except Catholic Church schools. If we are to decide this case on the facts before us, our question is simply this: Is it constitutional to tax this complainant to pay the cost of carrying pupils to Church schools of one specified denomination? II. Whether the taxpayer constitutionally can be made to contribute aid to parents of students because of their attendance at parochial schools depends upon the nature of those schools and their relation to the Church. The Constitution says nothing of education. It lays no obligation on the states to provide schools and does not undertake to regulate state systems of education if they see fit to maintain them. But they cannot, through school policy any more than through other means, invade rights secured *22 to citizens by the Constitution of the United States. West Virginia State Board of Education v. Barnette, 319 U.S. 624. One of our basic rights is to be free of taxation to support a transgression of the constitutional command that the authorities \"shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .\" U.S. Const. Amend. I; Cantwell v. Connecticut, 310 U.S. 296. The function of the Church school is a subject on which this record is meager. It shows only that the schools are under superintendence of a priest and that \"religion is taught as part of the curriculum.\" But we know that such schools are parochial only in name \u2014 they, in fact, represent a world-wide and age-old policy of the Roman Catholic Church. Under the rubric \"Catholic Schools,\" the Canon Law of the Church, by which all Catholics are bound, provides: \"1215. Catholic children are to be educated in schools where not only nothing contrary to Catholic faith and morals is taught, but rather in schools where religious and moral training occupy the first place. . . . (Canon 1372.)\" \"1216. In every elementary school the children must, according to their age, be instructed in Christian doctrine. \"The young people who attend the higher schools are to receive a deeper religious knowledge, and the bishops shall appoint priests qualified for such work by their learning and piety. (Canon 1373.)\" \"1217. Catholic children shall not attend non-Catholic, indifferent, schools that are mixed, that is to say, schools open to Catholics and non-Catholics alike. The bishop of the diocese only has the right, in harmony with the instructions of the Holy See, to decide under what circumstances, and with what safeguards *23 to prevent loss of faith, it may be tolerated that Catholic children go to such schools. (Canon 1374.)\" \"1224. The religious teaching of youth in any schools is subject to the authority and inspection of the Church. \"The local Ordinaries have the right and duty to watch that nothing is taught contrary to faith or good morals, in any of the schools of their territory. \"They, moreover, have the right to approve the books of Christian doctrine and the teachers of religion, and to demand, for the sake of safeguarding religion and morals, the removal of teachers and books. (Canon 1381.)\" (Woywod, Rev. Stanislaus, The New Canon Law, under imprimatur of Most Rev. Francis J. Spellman, Archbishop of New York and others, 1940.) It is no exaggeration to say that the whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies. The Roman Catholic Church, counseled by experience in many ages and many lands and with all sorts and conditions of men, takes what, from the viewpoint of its own progress and the success of its mission, is a wise estimate of the importance of education to religion. It does not leave the individual to pick up religion by channe. It relies on early and indelible indoctrination in the faith and order of the Church by the word and example of persons consecrated to the task. Our public school, if not a product of Protestantism, at least is more consistent with it than with the Catholic culture and scheme of values. It is a relatively recent development dating from about 1840.[1] It is organized on *24 the premise that secular education can be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that after the individual has been instructed in worldly wisdom he will be better fitted to choose his religion. Whether such a disjunction is possible, and if possible whether it is wise, are questions I need not try to answer. I should be surprised if any (Catholic would deny that the parochial school is a vital, if not the most vital, part of the Roman Catholic Church. If put to the choice, that venerable institution, I should expect, would forego its whole service for mature persons before it would give up education of the young, and it would be a wise choice. Its growth and cohesion, discipline and loyalty, spring from its schools. Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself.\nIII. It is of no importance in this situation whether the beneficiary of this expenditure of tax-raised funds is primarily the parochial school and incidentally the pupil, or whether the aid is directly bestowed on the pupil with indirect benefits to the school. The state cannot maintain a Church and it can no more tax its citizens to furnish free carriage to those who attend a Church. The prohibition against establishment of religion cannot be circumvented by a subsidy, bonus or reimbursement of expense to individuals for receiving religious instruction and indoctrination. The Court, however, compares this to other subsidies and loans to individuals and says, \"Nor does it follow that a law has a private rather than a public purpose because *25 it provides that tax-raised funds will be paid to reimburse individuals on account of money spent by them in a way which furthers a public program. See Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 518.\" Of course, the state may pay out tax-raised funds to relieve pauperism, but it may not under our Constitution do so to induce or reward piety. It may spend funds to secure old age against want, but it may not spend funds to secure religion against skepticism. It may compensate individuals for loss of employment, but it cannot compensate them for adherence to a creed. It seems to me that the basic fallacy in the Court's reasoning, which accounts for its failure to apply the principles it avows, it in ignoring the essentially religious test by which beneficiaries of this expenditure are selected. A policeman protects a Catholic, of course \u2014 but not because he is a Catholic; it is because he is a man and a member of our society. The fireman protects the Church school \u2014 but not because it is a Church school; it is because it is property, part of the assets of our society. Neither the fireman nor the policeman has to ask before he renders aid \"Is this man or building identified with the Catholic Church?\" But before these school authorities draw a check to reimburse for a student's fare they must ask just that question, and if the school is a Catholic one they may render aid because it is such, while if it is of any other faith or is run for profit, the help must be withheld. To consider the converse of the Court's reasoning will best disclose its fallacy. That there is no parallel between police and fire protection and this plan of reimbursement is apparent from the incongruity of the limitation of this Act if applied to police and fire service. Could we sustain an Act that said the police shall protect pupils on the way to or from public schools and Catholic schools but not *26 while going to and coming from other schools, and firemen shall extinguish a blaze in public or Catholic school buildings but shall not put out a blaze in Protestant Church schools or private schools operated for profit? That is the true analogy to the case we have before us and I should think it pretty plain that such a scheme would not be valid. The Court's holding is that this taxpayer has no grievance because the state has decided to make the reimbursement a public purpose and therefore we are bound to regard it as such. I agree that this Court has left, and always should leave to each state, great latitude in deciding for itself, in the light of its own conditions, what shall be public purposes in its scheme of things. It may socialize utilities and economic enterprises and make taxpayer's business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character. There is no answer to the proposition, more fully expounded by MR. JUSTICE RUTLEDGE, that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at taxpayers' expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom and which the Court is overlooking today. This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states' hands out of religion, but to *27 keep religion's hands off the state, and, above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse. Those great ends I cannot but think are immeasurably compromised by today's decision. This policy of our Federal Constitution has never been wholly pleasing to most religious groups. They all are quick to invoke its protections; they all are irked when they feel its restraints. This Court has gone a long way, if not an unreasonable way, to hold that public business of such paramount importance as maintenance of public order, protection of the privacy of the home, and taxation may not be pursued by a state in a way that even indirectly will interfere with religious proselyting. See dissent in Douglas v. Jeannette, 319 U.S. 157, 166; Murdock v. Pennsylvania, 319 U.S. 105; Martin v. Struthers, 319 U.S. 141; Jones v. Opelika, 316 U.S. 584, reversed on rehearing, 319 U.S. 103. But we cannot have it both ways. Religious teaching cannot be a private affair when the state seeks to impose regulations which infringe on it indirectly, and a public affair when it comes to taxing citizens of one faith to aid another, or those of no faith to aid all. If these principles seem harsh in prohibiting aid to Catholic education, it must not be forgotten that it is the same Constitution that alone assures Catholics the right to maintain these schools at all when predominant local sentiment would forbid them. Pierce v. Society of Sisters, 268 U.S. 510. Nor should I think that those who have done so well without this aid would want to see this separation between Church and State broken down. If the state may aid these religious schools, it may therefore regulate them. Many groups have sought aid from tax funds only to find that it carried political controls with it. Indeed this Court has *28 declared that \"It is hardly lack of due process for the Government to regulate that which it subsidizes.\" Wickard v. Filburn, 317 U.S. 111, 131. But in any event, the great purposes of the Constitution do not depend on the approval or convenience of those they restrain. I cannot read the history of the struggle to separate political from ecclesiastical affairs, well summarized in the opinion of MR. JUSTICE RUTLEDGE in which I generally concur, without a conviction that the Court today is unconsciously giving the clock's hands a backward turn. MR. JUSTICE FRANKFURTER joins in this opinion. MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON and MR. JUSTICE BURTON agree, dissenting. \"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .\" U.S. Const., Amend. I. \"Well aware that Almighty God hath created the mind free; . .. that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; . . . \"We, the General Assembly, do enact, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief. . . .\"[1] *29 I cannot believe that the great author of those words, or the men who made them law, could have joined in this decision. Neither so high nor so impregnable today as yesterday is the wall raised between church and state by Virginia's great statute of religious freedom and the First Amendment, now made applicable to all the states by the Fourteenth.[2] New Jersey's statute sustained is the first, if indeed it is not the second breach to be made by this Court's action. That a third, and a fourth, and still others will be attempted, we may be sure. For just as Cochran v. Board of Education, 281 U.S. 370, has opened the way by oblique ruling[3] for this decision, so will the two make wider the breach for a third. Thus with time the most solid freedom steadily gives way before continuing corrosive decision. This case forces us to determine squarely for the first time[4] what was \"an establishment of religion\" in the First Amendment's conception; and by that measure to decide whether New Jersey's action violates its command. The facts may be stated shortly, to give setting and color to the constitutional problem. By statute New Jersey has authorized local boards of education to provide for the transportation of children \"to and from school other than a public school\" except one *30 operated for profit wholly or in part, over established public school routes, or by other means when the child lives \"remote from any school.\"[5] The school board of Ewing Township has provided by resolution for \"the transportation of pupils of Ewing to the Trenton and Pennington High Schools and Catholic Schools by way of public carrier. . . .\"[6] Named parents have paid the cost of public conveyance of their children from their homes in Ewing to three public high schools and four parochial schools outside the district.[7] Semiannually the Board has reimbursed the parents from public school funds raised by general taxation. Religion is taught as part of the curriculum in each *31 of the four private schools, as appears affirmatively by the testimony of the superintendent of parochial schools in the Diocese of Trenton. The Court of Errors and Appeals of New Jersey, reversing the Supreme Court's decision, 132 N.J.L. 98, 39 A.2d 75, has held the Ewing board's action not in contravention of the state constitution or statutes or of the Federal Constitution. 133 N.J.L. 350, 44 A.2d 333. We have to consider only whether this ruling accords with the prohibition of the First Amendment implied in the due process clause of the Fourteenth.\nI. Not simply an established church, but any law respecting an establishment of religion is forbidden. The Amendment was broadly but not loosely phrased. It is the compact and exact summation of its author's views formed during his long struggle for religious freedom. In Madison's own words characterizing Jefferson's Bill for Establishing Religious Freedom, the guaranty he put in our national charter, like the bill he piloted through the Virginia Assembly, was \"a Model of technical precision, and perspicuous brevity.\"[8] Madison could not have confused \"church\" and \"religion,\" or \"an established church\" and \"an establishment of religion.\" The Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the *32 spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion. In proof the Amendment's wording and history unite with this Court's consistent utterances whenever attention has been fixed directly upon the question. \"Religion\" appears only once in the Amendment. But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid \"an establishment\" and another, much broader, for securing \"the free exercise thereof.\" \"Thereof\" brings down \"religion\" with its entire and exact content, no more and no less, from the first into the second guaranty, so that Congress and now the states are as broadly restricted concerning the one as they are regarding the other. No one would claim today that the Amendment is constricted, in \"prohibiting the free exercise\" of religion, to securing the free exercise of some formal or creedal observance, of one sect or of many. It secures all forms of religious expression, creedal, sectarian or nonsectarian, wherever and however taking place, except conduct which trenches upon the like freedoms of others or clearly and presently endangers the community's good order and security.[9] For the protective purposes of this phase of the basic freedom, street preaching, oral or by distribution of *33 literature, has been given \"the same high estate under the First Amendment as . . . worship in the churches and preaching from the pulpits.\"[10] And on this basis parents have been held entitled to send their children to private, religious schools. Pierce v. Society of Sisters, 268 U.S. 510. Accordingly, daily religious education commingled with secular is \"religion\" within the guaranty's comprehensive scope. So are religious training and teaching in whatever form. The word connotes the broadest content, determined not by the form or formality of the teaching or where it occurs, but by its essential nature regardless of those details. \"Religion\" has the same broad significance in the twin prohibition concerning \"an establishment.\" The Amendment was not duplicitous. \"Religion\" and \"establishment\" were not used in any formal or technical sense. The prohibition broadly forbids state support, financial or other, of religion in any guise, form or degree. It outlaws all use of public funds for religious purposes.\nII. No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history. The history includes not only Madison's authorship and the proceedings before the First Congress, but also the long and intensive struggle for religious freedom in America, more especially in Virginia,[11] of which the Amendment *34 was the direct culmination.[12] In the documents of the times, particularly of Madison, who was leader in the Virginia struggle before he became the Amendment's sponsor, but also in the writings of Jefferson and others and in the issues which engendered them is to be found irrefutable confirmation of the Amendment's sweeping content. For Madison, as also for Jefferson, religious freedom was the crux of the struggle for freedom in general. Remonstrance, Par. 15, Appendix hereto. Madison was coauthor with George Mason of the religious clause in Virginia's great Declaration of Rights of 1776. He is credited with changing it from a mere statement of the principle of tolerance to the first official legislative pronouncement that freedom of conscience and religion are inherent rights of the individual.[13] He sought also to have the Declaration *35 expressly condemn the existing Virginia establishment.[14] But the forces supporting it were then too strong. Accordingly Madison yielded on this phase but not for long. At once he resumed the fight, continuing it before succeeding legislative sessions. As a member of the General Assembly in 1779 he threw his full weight behind Jefferson's historic Bill for Establishing Religious Freedom. That bill was a prime phase of Jefferson's broad program of democratic reform undertaken on his return from the Continental Congress in 1776 and submitted for the General Assembly's consideration in 1779 as his proposed revised Virginia code.[15] With Jefferson's departure for Europe in 1784, Madison became the Bill's prime *36 sponsor.[16] Enactment failed in successive legislatures from its introduction in June. 1779, until its adoption in January, 1786. But during all this time the fight for religious freedom moved forward in Virginia on various fronts with growing intensity. Madison led throughout, against Patrick Henry's powerful opposing leadership until Henry was elected governor in November, 1784. The climax came in the legislative struggle of 1784-1785 over the Assessment Bill. See Supplemental Appendix hereto. This was nothing more nor less than a taxing measure for the support of religion, designed to revive the payment of tithes suspended since 1777. So long as it singled out a particular sect for preference it incurred the active and general hostility of dissentient groups. It was broadened to include them, with the result that some subsided temporarily in their opposition.[17] As altered, the bill gave to each taxpayer the privilege of designating which church should receive his share of the tax. In default of designation the legislature applied it to pious uses.[18] But what is of the utmost significance here, \"in *37 its final form the bill left the taxpayer the option of giving his tax to education.\"[19] Madison was unyielding at all times, opposing with all his vigor the general and nondiscriminatory as he had the earlier particular and discriminatory assessments proposed. The modified Assessment Bill passed second reading in December, 1784, and was all but enacted. Madison and his followers, however, maneuvered deferment of final consideration until November, 1785. And before the Assembly reconvened in the fall he issued his historic Memorial and Remonstrance.[20] This is Madison's complete, though not his only, interpretation of religious liberty.[21] It is a broadside attack upon all forms of \"establishment\" of religion, both general and particular, nondiscriminatory or selective. Reflecting not only the many legislative conflicts over the Assessment Bill and the Bill for Establishing Religious Freedom but also, for example, the struggles for religious incorporations and the continued maintenance of the glebes, the Remonstrance is at once the most concise and the most accurate statement of the views of the First Amendment's author concerning what is \"an establishment of religion.\" Because it behooves us in the dimming distance of time not *38 to lose sight of what he and his co-workers had in mind when, by a single sweeping stroke of the pen, they forbade an establishment of religion and secured its free exercise, the text of the Remonstrance is appended at the end of this opinion for its wider current reference, together with a copy of the bill against which it was directed. The Remonstrance, stirring up a storm of popular protest, killed the Assessment Bill.[22] It collapsed in committee shortly before Christmas, 1785. With this, the way was cleared at last for enactment of Jefferson's Bill for Establishing Religious Freedom. Madison promptly drove it through in January of 1786, seven years from the time it was first introduced. This dual victory substantially ended the fight over establishments, settling the issue against them. See note 33. The next year Madison became a member of the Constitutional Convention. Its work done, he fought valiantly to secure the ratification of its great product in Virginia as elsewhere, and nowhere else more effectively.[23] Madison was certain in his own mind that under the Constitution \"there is not a shadow of right in the general government to intermeddle with religion\"[24] and that \"this subject is, for the honor of America, perfectly free and *39 unshackled. The government has no jurisdiction over it . . ..\"[25] Nevertheless he pledged that he would work for a Bill of Rights, including a specific guaranty of religious freedom, and Virginia, with other states, ratified the Constitution on this assurance.[26] Ratification thus accomplished, Madison was sent to the first Congress. There he went at once about performing his pledge to establish freedom for the nation as he had done in Virginia. Within a little more than three years from his legislative victory at home he had proposed and secured the submission and ratification of the First Amendment as the first article of our Bill of Rights.[27] All the great instruments of the Virginia struggle for religious liberty thus became warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison's life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment's compact, but nonetheless comprehensive, phrasing. As the Remonstrance discloses throughout, Madison opposed every form and degree of official relation between religion and civil authority. For him religion was a wholly private matter beyond the scope of civil power *40 either to restrain or to support.[28] Denial or abridgment of religious freedom was a violation of rights both of conscience and of natural equality. State aid was no less obnoxious or destructive to freedom and to religion itself than other forms of state interference. \"Establishment\" and \"free exercise\" were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom. The Remonstrance, following the Virginia statute's example, referred to the history of religious conflicts and the effects of all sorts of establishments, current and historical, to suppress religion's free exercise. With Jefferson, Madison believed that to tolerate any fragment of establishment would be by so much to perpetuate restraint upon that freedom. Hence he sought to tear out the institution not partially but root and branch, and to bar its return forever. In no phase was he more unrelentingly absolute than in opposing state support or aid by taxation. Not even \"three pence\" contribution was thus to be exacted from any citizen for such a purpose. Remonstrance, Par. 3.[29]*41 Tithes had been the lifeblood of establishment before and after other compulsions disappeared. Madison and his coworkers made no exceptions or abridgments to the complete separation they created. Their objection was not to small tithes. It was to any tithes whatsoever. \"If it were lawful to impose a small tax for religion, the admission would pave the way for oppressive levies.\"[30] Not the amount but \"the principle of assessment was wrong.\" And the principle was as much to prevent \"the interference of law in religion\" as to restrain religious intervention in political matters.[31] In this field the authors of our freedom would not tolerate \"the first experiment on our liberties\" or \"wait till usurped power had strengthened itself by exercise, and entangled the question in precedents.\" Remonstrance, Par. 3. Nor should we. In view of this history no further proof is needed that the Amendment forbids any appropriation, large or small, from public funds to aid or support any and all religious exercises. But if more were called for, the debates in the First Congress and this Court's consistent expressions, whenever it has touched on the matter directly,[32] supply it. *42 By contrast with the Virginia history, the congressional debates on consideration of the Amendment reveal only sparse discussion, reflecting the fact that the essential issues had been settled.[33] Indeed the matter had become so well understood as to have been taken for granted in all but formal phrasing. Hence, the only enlightening reference shows concern, not to preserve any power to use public funds in aid of religion, but to prevent the Amendment from outlawing private gifts inadvertently by virtue of the breadth of its wording.[34] In the *43 margin are noted also the principal decisions in which expressions of this Court confirm the Amendment's broad prohibition.[35] *44 III. Compulsory attendance upon religious exercises went out early in the process of separating church and state, together with forced observance of religious forms and ceremonies.[36] Test oaths and religious qualification for office followed later.[37] These things none devoted to our great tradition of religious liberty would think of bringing back. Hence today, apart from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious surviving threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through use of the taxing power to support religion, religious establishments, or establishments having a religious foundation whatever their form or special religious function. Does New Jersey's action furnish support for religion by use of the taxing power? Certainly it does, if the test remains undiluted as Jefferson and Madison made it, that money taken by taxation from one is not to be used or given to support another's religious training or belief, or indeed one's own.[38] Today as then the furnishing of \"contributions *45 of money for the propagation of opinions which he disbelieves\" is the forbidden exaction; and the prohibition is absolute for whatever measure brings that consequence and whatever amount may be sought or given to that end. The funds used here were raised by taxation. The Court does not dispute, nor could it, that their use does in fact give aid and encouragement to religious instruction. It only concludes that this aid is not \"support\" in law. But Madison and Jefferson were concerned with aid and support in fact, not as a legal conclusion \"entangled in precedents.\" Remonstrance, Par. 3. Here parents pay money to send their children to parochial schools and funds raised by taxation are used to reimburse them. This not only helps the children to get to school and the parents to send them. It aids them in a substantial way to get the very thing which they are sent to the particular school to secure, namely, religious training and teaching. Believers of all faiths, and others who do not express their feeling toward ultimate issues of existence in any creedal form, pay the New Jersey tax. When the money so raised is used to pay for transportation to religious schools, the Catholic taxpayer to the extent of his proportionate share pays for the transportation of Lutheran, Jewish and otherwise religiously affiliated children to receive their non-Catholic religious instruction. Their parents likewise pay proportionately for the transportation of Catholic children to receive Catholic instruction. Each thus contributes to \"the propagation of opinions which he disbelieves\" in so far as their religions differ, as do others who accept no creed without regard to those differences. Each *46 thus pays taxes also to support the teaching of his own religion, an exaction equally forbidden since it denies \"the comfortable liberty\" of giving one's contribution to the particular agency of instruction he approves.[39] New Jersey's action therefore exactly fits the type of exaction and the kind of evil at which Madison and Jefferson struck. Under the test they framed it cannot be said that the cost of transportation is no part of the cost of education or of the religious instruction given. That it is a substantial and a necessary element is shown most plainly by the continuing and increasing demand for the state to assume it. Nor is there pretense that it relates only to the secular instruction given in religious schools or that any attempt is or could be made toward allocating proportional shares as between the secular and the religious instruction. It is precisely because the instruction is religious and relates to a particular faith, whether one or another, that parents send their children to religious schools under the Pierce doctrine. And the very purpose of the state's contribution is to defray the cost of conveying the pupil to the place where he will receive not simply secular, but also and primarily religious, teaching and guidance. Indeed the view is sincerely avowed by many of various faiths,[40] that the basic purpose of all education is or should be religious, that the secular cannot be and should not be separated from the religious phase and emphasis. Hence, *47 the inadequacy of public or secular education and the necessity for sending the child to a school where religion is taught. But whatever may be the philosophy or its justification, there is undeniably an admixture of religious with secular teaching in all such institutions. That is the very reason for their being. Certainly for purposes of constitutionality we cannot contradict the whole basis of the ethical and educational convictions of people who believe in religious schooling. Yet this very admixture is what was disestablished when the First Amendment forbade \"an establishment of religion.\" Commingling the religious with the secular teaching does not divest the whole of its religious permeation and emphasis or make them of minor part, if proportion were material. Indeed, on any other view, the constitutional prohibition always could be brought to naught by adding a modicum of the secular. An appropriation from the public treasury to pay the cost of transportation to Sunday school, to weekday special classes at the church or parish house, or to the meetings of various young people's religious societies, such as the Y.M.C.A., the Y.W.C.A., the Y.M.H.A., the Epworth League, could not withstand the constitutional attack. This would be true, whether or not secular activities were mixed with the religious. If such an appropriation could not stand, then it is hard to see how one becomes valid for the same thing upon the more extended scale of daily instruction. Surely constitutionality does not turn on where or how often the mixed teaching occurs. Finally, transportation, where it is needed, is as essential to education as any other element. Its cost is as much a part of the total expense, except at times in amount, as the cost of textbooks, of school lunches, of athletic equipment, of writing and other materials; indeed of all other *48 items composing the total burden. Now as always the core of the educational process is the teacher-pupil relationship. Without this the richest equipment and facilities would go for naught. See Judd v. Board of Education, 278 N.Y. 200, 212, 15 N.E.2d 576, 582. But the proverbial Mark Hopkins conception no longer suffices for the country's requirements. Without buildings, without equipment, without library, textbooks and other materials, and without transportation to bring teacher and pupil together in such an effective teaching environment, there can be not even the skeleton of what our times require. Hardly can it be maintained that transportation is the least essential of these items, or that it does not in fact aid, encourage, sustain and support, just as they do, the very process which is its purpose to accomplish. No less essential is it, or the payment of its cost, than the very teaching in the classroom or payment of the teacher's sustenance. Many types of equipment, now considered essential, better could be done without. For me, therefore, the feat is impossible to select so indispensable an item from the composite of total costs, and characterize it as not aiding, contributing to, promoting or sustaining the propagation of beliefs which it is the very end of all to bring about. Unless this can be maintained, and the Court does not maintain it, the aid thus given is outlawed. Payment of transportation is no more, nor is it any the less essential to education, whether religious or secular, than payment for tuitions, for teachers' salaries, for buildings, equipment and necessary materials. Nor is it any the less directly related, in a school giving religious instruction, to the primary religious objective all those essential items of cost are intended to achieve. No rational line can be drawn between payment for such larger, but not more necessary, items and payment for transportation. The only line that can be so drawn is one between more dollars and less. Certainly in this *49 realm such a line can be no valid constitutional measure. Murdock v. Pennsylvania, 319 U.S. 105; Thomas v. Collins, 323 U.S. 516.[41] Now, as in Madison's time, not the amount but the principle of assessment is wrong. Remonstrance, Par. 3.\nIV. But we are told that the New Jersey statute is valid in its present application because the appropriation is for a public, not a private purpose, namely, the promotion of education, and the majority accept this idea in the conclusion that all we have here is \"public welfare legislation.\" If that is true and the Amendment's force can be thus destroyed, what has been said becomes all the more pertinent. For then there could be no possible objection to more extensive support of religious education by New Jersey. If the fact alone be determinative that religious schools are engaged in education, thus promoting the general and individual welfare, together with the legislature's decision that the payment of public moneys for their aid makes their work a public function, then I can see no possible basis, except one of dubious legislative policy, for the state's refusal to make full appropriation for support of private, religious schools, just as is done for public *50 instruction. There could not be, on that basis, valid constitutional objection.[42] Of course paying the cost of transportation promotes the general cause of education and the welfare of the individual. So does paying all other items of educational expense. And obviously, as the majority say, it is much too late to urge that legislation designed to facilitate the opportunities of children to secure a secular education serves no public purpose. Our nation-wide system of public education rests on the contrary view, as do all grants in aid of education, public or private, which is not religious in character. These things are beside the real question. They have no possible materiality except to obscure the all-pervading, inescapable issue. Cf. Cochran v. Board of Education, supra. Stripped of its religious phase, the case presents no substantial federal question. Ibid. The public function argument, by casting the issue in terms of promoting the general cause of education and the welfare of the individual, ignores the religious factor and its essential connection with the transportation, thereby leaving out the only vital element in the case. So of course do the \"public welfare\" and \"social legislation\" ideas, for they come to the same thing. *51 We have here then one substantial issue, not two. To say that New Jersey's appropriation and her use of the power of taxation for raising the funds appropriated are not for public purposes but are for private ends, is to say that they are for the support of religion and religious teaching. Conversely, to say that they are for public purposes is to say that they are not for religious ones. This is precisely for the reason that education which includes religious training and teaching, and its support, have been made matters of private right and function, not public, by the very terms of the First Amendment. That is the effect not only in its guaranty of religion's free exercise, but also in the prohibition of establishments. It was on this basis of the private character of the function of religious education that this Court held parents entitled to send their children to private, religious schools. Pierce v. Society of Sisters, supra. Now it declares in effect that the appropriation of public funds to defray part of the cost of attending those schools is for a public purpose. If so, I do not understand why the state cannot go farther or why this case approaches the verge of its power. In truth this view contradicts the whole purpose and effect of the First Amendment as heretofore conceived. The \"public function\" \u2014 \"public welfare\" \u2014 \"social legislation\" argument seeks, in Madison's words, to \"employ Religion [that is, here, religious education] as an engine of Civil policy.\" Remonstrance, Par. 5. It is of one piece with the Assessment Bill's preamble, although with the vital difference that it wholly ignores what that preamble explicitly states.[43] *52 Our constitutional policy is exactly the opposite. It does not deny the value or the necessity for religious training, teaching or observance. Rather it secures their free exercise. But to that end it does deny that the state can undertake or sustain them in any form or degree. For this reason the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the twofold protection and, as the state cannot forbid, neither can it perform or aid in performing the religious function. The dual prohibition makes that function altogether private. It cannot be made a public one by legislative act. This was the very heart of Madison's Remonstrance, as it is of the Amendment itself. It is not because religious teaching does not promote the public or the individual's welfare, but because neither is furthered when the state promotes religious education, that the Constitution forbids it to do so. Both legislatures and courts are bound by that distinction. In failure to observe it lies the fallacy of the \"public function\" \u2014 \"social legislation\" argument, a fallacy facilitated by easy transference of the argument's basing from due process unrelated to any religious aspect to the First Amendment. By no declaration that a gift of public money to religious uses will promote the general or individual welfare, or the cause of education generally, can legislative bodies overcome the Amendment's bar. Nor may the courts sustain their attempts to do so by finding such consequences for appropriations which in fact give aid to or promote religious uses. Cf. Norris v. Alabama, 294 U.S. 587, 590; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659; Akins v. Texas, 325 U.S. 398, 402. Legislatures are free to make, *53 and courts to sustain, appropriations only when it can be found that in fact they do not aid, promote, encourage or sustain religious teaching or observances, be the amount large or small. No such finding has been or could be made in this case. The Amendment has removed this form of promoting the public welfare from legislative and judicial competence to make a public function. It is exclusively a private affair. The reasons underlying the Amendment's policy have not vanished with time or diminished in force. Now as when it was adopted the price of religious freedom is double. It is that the church and religion shall live both within and upon that freedom. There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse. Madison's Remonstrance, Par. 6, 8.[44] The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting. Id., Par. 7, 8.[45] Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another. That is precisely the history of societies which have had an established religion and dissident *54 groups. Id., Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy the cherished liberty. The dominating group will achieve the dominant benefit; or all will embroil the state in their dissensions. Id., Par. 11.[46] Exactly such conflicts have centered of late around providing transportation to religious schools from public funds.[47] The issue and the dissension work typically, in Madison's phrase, to \"destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects.\" Id., Par. 11. This occurs, as he well knew, over measures *55 at the very threshold of departure from the principle. Id., Par. 3, 9, 11. In these conflicts wherever success has been obtained it has been upon the contention that by providing the transportation the general cause of education, the general welfare, and the welfare of the individual will be forwarded; hence that the matter lies within the realm of public function, for legislative determination.[48] State courts have divided upon the issue, some taking the view that only the individual, others that the institution receives the benefit.[49] A few have recognized that this dichotomy is false, that both in fact are aided.[50] *56 The majority here does not accept in terms any of those views. But neither does it deny that the individual or the school, or indeed both, are benefited directly and substantially.[51] To do so would cut the ground from under the public function \u2014 social legislation thesis. On the contrary, the opinion concedes that the children are aided by being helped to get to the religious schooling. By converse necessary implication as well as by the absence of express denial, it must be taken to concede also that the school is helped to reach the child with its religious teaching. The religious enterprise is common to both, as is the interest in having transportation for its religious purposes provided. Notwithstanding the recognition that this two-way aid is given and the absence of any denial that religious teaching is thus furthered, the Court concludes that the aid so given is not \"support\" of religion. It is rather only support of education as such, without reference to its religious content, and thus becomes public welfare legislation. To this elision of the religious element from the case is added gloss in two respects, one that the aid extended partakes of the nature of a safety measure, the other that failure to provide it would make the state unneutral in religious matters, discriminating against or hampering such children concerning public benefits all others receive. *57 As will be noted, the one gloss is contradicted by the facts of record and the other is of whole cloth with the \"public function\" argument's excision of the religious factor.[52] But most important is that this approach, if valid, supplies a ready method for nullifying the Amendment's guaranty, not only for this case and others involving small grants in aid for religious education, but equally for larger ones. The only thing needed will be for the Court again to transplant the \"public welfare \u2014 public function\" view from its proper nonreligious due process bearing to First Amendment application, holding that religious education is not \"supported\" though it may be aided by the appropriation, and that the cause of education generally is furthered by helping the pupil to secure that type of training. This is not therefore just a little case over bus fares. In paraphrase of Madison, distant as it may be in its present form from a complete establishment of religion, it differs from it only in degree; and is the first step in that direction. Id., Par. 9.[53] Today as in his time \"the same authority which can force a citizen to contribute three pence only . . . for the support of any one [religious] establishment, may force him\" to pay more; or \"to conform to any other establishment in all cases whatsoever.\" And now, as then, \"either . . . we must say, that the will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred.\" Remonstrance, Par. 15. The realm of religious training and belief remains, as the Amendment made it, the kingdom of the individual *58 man and his God. It should be kept inviolately private, not \"entangled . . . in precedents\"[54] or confounded with what legislatures legitimately may take over into the public domain.\nV. No one conscious of religious values can be unsympathetic toward the burden which our constitutional separation puts on parents who desire religious instruction mixed with secular for their children. They pay taxes for others' children's education, at the same time the added cost of instruction for their own. Nor can one happily see benefits denied to children which others receive, because in conscience they or their parents for them desire a different kind of training others do not demand. But if those feelings should prevail, there would be an end to our historic constitutional policy and command. No more unjust or discriminatory in fact is it to deny attendants at religious schools the cost of their transportation than it is to deny them tuitions, sustenance for their teachers, or any other educational expense which others receive at public cost. Hardship in fact there is which none can blink. But, for assuring to those who undergo it the greater, the most comprehensive freedom, it is one written by design and firm intent into our basic law. Of course discrimination in the legal sense does not exist. The child attending the religious school has the same right as any other to attend the public school. But he foregoes exercising it because the same guaranty which assures this freedom forbids the public school or any agency of the *59 state to give or aid him in securing the religious instruction he seeks. Were he to accept the common school, he would be the first to protest the teaching there of any creed or faith not his own. And it is precisely for the reason that their atmosphere is wholly secular that children are not sent to public schools under the Pierce doctrine. But that is a constitutional necessity, because we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion. Remonstrance, Par. 8, 12. That policy necessarily entails hardship upon persons who forego the right to educational advantages the state can supply in order to secure others it is precluded from giving. Indeed this may hamper the parent and the child forced by conscience to that choice. But it does not make the state unneutral to withhold what the Constitution forbids it to give. On the contrary it is only by observing the prohibition rigidly that the state can maintain its neutrality and avoid partisanship in the dissensions inevitable when sect opposes sect over demands for public moneys to further religious education, teaching or training in any form or degree, directly or indirectly. Like St. Paul's freedom, religious liberty with a great price must be bought. And for those who exercise it most fully, by insisting upon religious education for their children mixed with secular, by the terms of our Constitution the price is greater than for others. The problem then cannot be cast in terms of legal discrimination or its absence. This would be true, even though the state in giving aid should treat all religious instruction alike. Thus, if the present statute and its application were shown to apply equally to all religious schools *60 of whatever faith,[55] yet in the light of our tradition it could not stand. For then the adherent of one creed still would pay for the support of another the childless taxpayer with others more fortunate. Then too there would seem to be no bar to making appropriations for transportation and other expenses of children attending public or other secular schools, after hours in separate places and classes for their exclusively religious instruction. The person who embraces no creed also would be forced to pay for teaching what he does not believe. Again, it was the furnishing of \"contributions of money for the propagation of opinions which he disbelieves\" that the fathers outlawed. That consequence and effect are not removed by multiplying to all-inclusiveness the sects for which support is exacted. The Constitution requires, not comprehensive identification of state with religion, but complete separation.\nVI. Short treatment will dispose of what remains. Whatever might be said of some other application of New Jersey's statute, the one made here has no semblance of bearing as a safety measure or, indeed, for securing expeditious conveyance. The transportation supplied is by public conveyance, subject to all the hazards and delays of the highway and the streets incurred by the public generally in going about its multifarious business. Nor is the case comparable to one of furnishing fire or police protection, or access to public highways. These things are matters of common right, part of the general *61 need for safety.[56] Certainly the fire department must not stand idly by while the church burns. Nor is this reason why the state should pay the expense of transportation or other items of the cost of religious education.[57] Needless to add, we have no such case as Green v. Frazier, 253 U.S. 233, or Carmichael v. Southern Coal Co., 301 U.S. 495, which dealt with matters wholly unrelated to the First Amendment, involving only situations where the \"public function\" issue was determinative. I have chosen to place my dissent upon the broad ground I think decisive, though strictly speaking the case might be decided on narrower issues. The New Jersey statute might be held invalid on its face for the exclusion of children *62 who attend private, profit-making schools.[58] I cannot assume, as does the majority, that the New Jersey courts would write off this explicit limitation from the statute. Moreover, the resolution by which the statute was applied expressly limits its benefits to students of public and Catholic schools.[59] There is no showing that there are no other private or religious schools in this populous district.[60] I do not think it can be assumed there were none.[61] But in the view I have taken, it is unnecessary to limit grounding to these matters. *63 Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools. See Johnson, The Legal Status of Church-State Relationships in the United States (1934); Thayer, Religion in Public Education (1947); Note (1941) 50 Yale L.J. 917. In my opinion both avenues were closed by the Constitution. Neither should be opened by this Court. The matter is not one of quantity, to be measured by the amount of money expended. Now as in Madison's day it is one of principle, to keep separate the separate spheres as the First Amendment drew them; to prevent the first experiment upon our liberties; and to keep the question from becoming entangled in corrosive precedents. We should not be less strict to keep strong and untarnished the one side of the shield of religious freedom than we have been of the other. The judgment should be reversed.\nAPPENDIX. MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS. TO THE HONORABLE THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF VIRGINIA. A MEMORIAL AND REMONSTRANCE. We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled \"A *64 Bill establishing a provision for Teachers of the Christian Religion,\" and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill, 1. Because we hold it for a fundamental and undeniable truth, \"that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction not by force or violence.\"[1a] The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. *65 True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass on the rights of the minority. 2. Because if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves. 3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence *66 only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? 4. Because, the bill violates that equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If \"all men are by nature equally free and independent,\"[1b] all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an \"equal title to the free exercise of Religion according to the dictates of conscience\"[2a] Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unnecessary and unwarrantable? Can their piety alone be intrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations, to believe that they either covet preeminencies over their fellow citizens, or that they will be seduced by them, from the common opposition to the measure. *67 5. Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: The second an unhallowed perversion of the means of salvation. 6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only during the period of miraculous aid, but long after it had been left to its own evidence, and the ordinary care of Providence: Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits. 7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries, has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior *68 to its incorporation with Civil policy. Propose a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest? 8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within [the] cognizance of Civil Government, how can its legal establishment be said to be necessary to civil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another. 9. Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal *69 of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent may offer a more certain repose from his troubles. 10. Because, it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration, by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopulated flourishing kingdoms. 11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that \"Christian *70 forbearance,[1c] love and charity,\" which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law? 12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of [revelation] from coming into the Region of it; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachments of error. 13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the Government, on its general authority. 14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens: and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. \"The people of the respective counties *71 are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly.\" But the representation must be made equal, before the voice either of the Representatives or of the Counties, will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties. 15. Because, finally, \"the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience\" is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the Declaration of those rights which pertain to the good people of Virginia, as the \"basis and foundation of Government,\"[1d] it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the trial by jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty *72 bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth. II Madison, 183-191.\nSUPPLEMENTAL APPENDIX.\nA BILL ESTABLISHING A PROVISION FOR TEACHERS OF THE CHRISTIAN RELIGION. Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society; which cannot be effected without a competent provision for learned teachers, who may be thereby enabled to devote their time and attention to the duty of instructing such citizens, as from their circumstances and want of education, cannot otherwise attain such knowledge; and it is judged that such provision may be made by the Legislature, without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of pre-eminence amongst the different societies or communities of Christians; Be it therefore enacted by the General Assembly, That for the support of Christian teachers, per centum on the amount, or in the pound on the sum payable for tax on the property within this Commonwealth, is hereby assessed, and shall be paid by every person chargeable with the said tax at the time the same shall become due; and the Sheriffs of the several Counties shall have power to levy and collect the same in the same manner and under *73 the like restrictions and limitations, as are or may be prescribed by the laws for raising the Revenues of this State. And be it enacted, That for every sum so paid, the Sheriff or Collector shall give a receipt, expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid, keeping a distinct account thereof in his books. The Sheriff of every County, shall, on or before the day of in every year, return to the Court, upon oath, two alphabetical lists of the payments to him made, distinguishing in columns opposite to the names of the persons who shall have paid the same, the society to which the money so paid was by them appropriated; and one column for the names where no appropriation shall be made. One of which lists, after being recorded in a book to be kept for that purpose, shall be filed by the Clerk in his office; the other shall by the Sheriff be fixed up in the Court-house, there to remain for the inspection of all concerned. And the Sheriff, after deducting five per centum for the collection, shall forthwith pay to such person or persons as shall be appointed to receive the same by the Vestry, Elders, or Directors, however denominated of each such society, the sum so stated to be due to that society; or in default thereof, upon the motion of such person or persons to the next or any succeeding Court, execution shall be awarded for the same against the Sheriff and his security, his and their executors or administrators; provided that ten days previous notice be given of such motion. And upon every such execution, the Officer serving the same shall proceed to immediate sale of the estate taken, and shall not accept of security for payment at the end of three months, nor to have the goods forthcoming at the day of sale; for his better direction wherein, the Clerk shall endorse upon every such execution that no security of any kind shall be taken. *74 And be it further enacted, That the money to be raised by virtue of this Act, shall be by the Vestries, Elders, or Directors of each religious society, appropriated to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever; except in the denominations of Quakers and Menonists, who may receive what is collected from their members, and place it in their general fund, to be disposed of in a manner which they shall think best calculated to promote their particular mode of worship. And be it enacted, That all sums which at the time of payment to the Sheriff or Collector may not be appropriated by the person paying the same, shall be accounted for with the Court in manner as by this Act is directed; and after deducting for his collection, the Sheriff shall pay the amount thereof (upon account certified by the Court to the Auditors of Public Accounts, and by them to the Treasurer) into the public Treasury, to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise, and to no other use or purpose whatsoever. THIS Act shall commence, and be in force, from and after the day of in the year A Copy from the Engrossed Bill. JOHN BECKLEY, C.H.D. Washington Mss. (Papers of George Washington, Vol. 231) ; Library of Congress.[*] NOTES [1] \"Whenever in any district there are children living remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and from school, including the transportation of school children to and from school other than a public school, except such school as is operated for profit in whole or in part.\n\"When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part.\" New Jersey Laws, 1941, c. 191, p. 581; N.J.R.S. Cum. Supp., tit. 18, c. 14, \u00a7 8. [2] Appellant does not challenge the New Jersey statute or the resolution on the ground that either violates the equal protection clause of the Fourteenth Amendment by excluding payment for the transportation of any pupil who attends a \"private school run for profit.\" Although the township resolution authorized reimbursement only for parents of public and Catholic school pupils, appellant does not allege, nor is there anything in the record which would offer the slightest support to an allegation, that there were any children in the township who attended or would have attended, but for want of transportation, any but public and Catholic schools. It will be appropriate to consider the exclusion of students of private schools operated for profit when and if it is proved to have occurred, is made the basis of a suit by one in a position to challenge it, and New Jersey's highest court has ruled adversely to the challenger. Striking down a state law is not a matter of such light moment that it should be done by a federal court ex mero motu on a postulate neither charged nor proved, but which rests on nothing but a possibility. Cf. Liverpool, N.Y. & P.S.S. Co. v. Comm'rs of Emigration, 113 U.S. 33, 39. [3] It might hold the excepting clause to be invalid, and sustain the statute with that clause excised. N.J.R.S., tit. 1, c. 1, \u00a7 10, provides with regard to any statute that if \"any provision thereof, shall be declared to be unconstitutional . . . in whole or in part, by a court of competent jurisdiction, such . . . article . . . shall, to the extent that it is not unconstitutional, . . . be enforced. . . .\" The opinion of the Court of Errors and Appeals in this very case suggests that state law now authorizes transportation of all pupils. Its opinion stated: \"Since we hold that the legislature may appropriate general state funds or authorize the use of local funds for the transportation of pupils to any school, we conclude that such authorization of the use of local funds is likewise authorized by Pamph. L. 1941, ch. 191, and R.S. 18:7-78.\" 133 N.J.L. 350, 354, 44 A.2d 333, 337. (Italics supplied.) [4] See Reynolds v. United States, 98 U.S. 145, 162; cf. Knowlton v. Moore, 178 U.S. 41, 89, 106. [5] See e.g. Macaulay, History of England (1849) I, cc. 2, 4; The Cambridge Modern History (1908) V, cc. V, IX, XI; Beard, Rise of American Civilization (1933) I, 60; Cobb, Rise of Religious Liberty in America (1902) c. II; Sweet, The Story of Religion in America (1939) c. II; Sweet, Religion in Colonial America (1942) 320-322. [6] See e.g. the charter of the colony of Carolina which gave the grantees the right of \"patronage and advowsons of all the churches and chapels . . . together with licence and power to build and found churches, chapels and oratories . . . and to cause them to be dedicated and consecrated, according to the ecclesiastical laws of our kingdom of England.\" Poore, Constitutions (1878) II, 1390, 1391. That of Maryland gave to the grantee Lord Baltimore \"the Patronages, and Advowsons of all Churches which . . . shall happen to be built, together with Licence and Faculty of erecting and founding Churches, Chapels, and Places of Worship . . . and of causing the same to be dedicated and consecrated according to the Ecclesiastical Laws of our Kingdom of England, with all, and singular such, and as ample Rights, Jurisdictions, Privileges, .. . as any Bishop . . . in our Kingdom of England, ever . . . hath had. . . .\" MacDonald, Documentary Source Book of American History (1934) 31, 33. The Commission of New Hampshire of 1680, Poore, supra, II, 1277, stated: \"And above all things We do by these presents will, require and comand our said Council to take all possible care for ye discountenancing of vice and encouraging of virtue and good living: and that by such examples ye infidle may be invited and desire to partake of ye Christian Religion, and for ye greater ease and satisfaction of ye sd loving subjects in matters of religion, We do hereby require and comand yt liberty of conscience shall be allowed unto all protestants; yt such especially as shall be conformable to ye rites of ye Church of Engd shall be particularly countenanced and encouraged.\" See also Pawlet v. Clark, 9 Cranch 292. [7] See e.g. Semple, Baptists in Virginia (1894); Sweet, Religion in Colonial America, supra at 131-152, 322-339. [8] Almost every colony exacted some kind of tax for church support. See e.g. Cobb, op. cit. supra, note 5, 110 (Virginia); 131 (North Carolina); 169 (Massachusetts); 270 (Connecticut); 304, 310, 339 (New York); 386 (Maryland); 295 (New Hampshire). [9] Madison wrote to a friend in 1774: \"That diabolical, hell-conceived principle of persecution rages among some . . . This vexes me the worst of anything whatever. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk, or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. So I must beg you to pity me, and pray for liberty of conscience to all.\" I Writings of James Madison (1900) 18, 21. [10] Virginia's resistance to taxation for church support was crystallized in the famous \"Parsons' Cause\" argued by Patrick Henry in 1763. For an account see Cobb, op. cit., supra, note 5, 108-111. [11] II Writings of James Madison, 183. [12] In a recently discovered collection of Madison's papers, Madison recollected that his Remonstrance \"met with the approbation of the Baptists, the Presbyterians, the Quakers, and the few Roman Catholics, universally; of the Methodists in part; and even of not a few of the Sect formerly established by law.\" Madison, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments, in Fleet, Madison's \"Detached Memorandum,\" 3 William and Mary Q. (1946) 534, 551, 555. [13] For accounts of background and evolution of the Virginia Bill for Religious Liberty see e.g. James, The Struggle for Religious Liberty in Virginia (1900); Thom, The Struggle for Religious Freedom in Virginia: The Baptists (1900); Cobb, op. cit., supra, note 5, 74-115; Madison, Monopolies, Perpetuities. Corporations, Ecclesiastical Endowments, op. cit., supra, note 12, 554.556. [14] 12 Hening, Statutes of Virginia (1823) 84; Commager, Documents of American History (1944) 125. [15] Permoli v. New Orleans, 3 How. 589. Cf. Barron v. Baltimore, 7 Pet. 243. [16] For a collection of state constitutional provisions on freedom of religion see Gabel, Public Funds for Church and Private Schools (1937) 148-149. See also 2 Cooley, Constitutional Limitations (1927) 960-985. [17] Test provisions forbade officeholders to \"deny . . . the truth of the Protestant religion,\" e.g. Constitution of North Carolina (1776) \u00a7 XXXII, II Poore, supra, 1413. Maryland permitted taxation for support of the Christian religion and limited civil office to Christians until 1818, id., I, 819, 820, 832. [18] See Note 50 Yale L.J. (1941) 917; see also cases collected 14 L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148. [19] See cases collected 14 L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148. [20] Ibid. See also Cooley, op. cit., supra, note 16. [21] Terrett v. Taylor, 9 Cranch 43; Watson v. Jones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333; Cf. Reynolds v. United States, supra, 162; Reuben Quick Bear v. Leupp, 210 U.S. 50. [22] Cantwell v. Connecticut, 310 U.S. 296; Jamison v. Texas, 318 U.S. 413; Largent v. Texas, 318 U.S. 418; Murdock v. Pennsylvania, supra; West Virginia State Board of Education v. Barnette, 319 U.S. 624; Follett v. McCormick, 321 U.S. 573; Marsh v. Alabama, 326 U.S. 501. Cf. Bradfield v. Roberts, 175 U.S. 291. [23] Harmon v. Dreher, Speer's Equity Reports (S.C., 1843), 87, 120. [24] New Jersey long ago permitted public utilities to charge school children reduced rates. See Public S.R. Co. v. Public Utility Comm'rs, 81 N.J.L. 363, 80 A. 27 (1911); see also Interstate Ry. v. Massachusetts, supra. The District of Columbia Code requires that the new charter of the District public transportation company provide a three-cent fare \"for school children . . . going to and from public, parochial, or like schools. . . .\" 47 Stat. 752, 759. [1] See Cubberley, Public Education in the United States (1934) ch. VI; Knight, Education in the United States (1941) ch. VIII. [1] \"A Bill for Establishing Religious Freedom,\" enacted by the General Assembly of Virginia, January 19, 1786. See 1 Randall, The Life of Thomas Jefferson (1858) 219-220; XII Hening's Statutes of Virginia (1823) 84. [2] Schneider v. State, 308 U.S. 147; Cantwell v. Connecticut, 310 U.S. 296; Murdock v. Pennsylvania, 319 U.S. 105; Prince v. Massachusetts, 321 U.S. 158; Thomas v. Collins, 323 U.S. 516, 530. [3] The briefs did not raise the First Amendment issue. The only one presented was whether the state's action involved a public or an exclusively private function under the due process clause of the Fourteenth Amendment. See Part IV infra. On the facts, the cost of transportation here is inseparable from both religious and secular teaching at the religious school. In the Cochran case the state furnished secular textbooks only. But see text infra at note 40 et seq., and Part IV. [4] Cf. note 3 and text Part IV; see also note 35. [5] The statute reads: \"Whenever in any district there are children living remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and from school . . . other than a public school, except such school as is operated for profit in whole or in part.\n\"When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part.\" Laws of New Jersey (1941) c. 191. [6] The full text of the resolution is given in note 59 infra. [7] The public schools attended were the Trenton Senior High School, the Trenton Junior High School and the Pennington High School. Ewing Township itself provides no public high schools, affording only elementary public schools which stop with the eighth grade. The Ewing school board pays for both transportation and tuitions of pupils attending the public high schools. The only private schools, all Catholic, covered in application of the resolution are St. Mary's Cathedral High School, Trenton Catholic Boys High School, and two elementary parochial schools, St. Hedwig's Parochial School and St. Francis School. The Ewing board pays only for transportation to these schools, not for tuitions. So far as the record discloses, the board does not pay for or provide transportation to any other elementary school, public or private. See notes 58, 59 and text infra. [8] IX Writings of James Madison (ed. by Hunt, 1910) 288; Padover, Jefferson (1942) 74. Madison's characterization related to Jefferson's entire revision of the Virginia Code, of which the Bill for Establishing Religious Freedom was part. See note 15. [9] See Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S. 333; Morman Church v. United States, 136 U.S. 1; Jacobson v. Massachusetts, 197 U.S. 11; Prince v. Massachusetts, 321 U.S. 158; also Cleveland v. United States, 329 U.S. 14.\nPossibly the first official declaration of the \"clear and present danger\" doctrine was Jefferson's declaration in the Virginia Statute for Establishing Religious Freedom: \"That it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.\" 1 Randall, The Life of Thomas Jefferson (1858) 220; Padover, Jefferson (1942) 81. For Madison's view to the same effect, see note 28 infra. [10] Murdock v. Pennsylvania, 319 U.S. 105, 109; Martin v. Struthers, 319 U.S. 141; Jamison v. Texas, 318 U.S. 413; Marsh v. Alabama, 326 U.S. 501; Tucker v. Texas, 326 U.S. 517. [11] Conflicts in other states, and earlier in the colonies, contributed much to generation of the Amendment, but none so directly as that in Virginia or with such formative influence on the Amendment's content and wording. See Cobb, Rise of Religious Liberty in America (1902); Sweet, The Story of Religion in America (1939). The Charter of Rhode Island of 1663, II Poore, Constitutions (1878) 1595, was the first colonial charter to provide for religious freedom.\nThe climactic period of the Virginia struggle covers the decade 1776-1786, from adoption of the Declaration of Rights to enactment of the Statute for Religious Freedom. For short accounts see Padover, Jefferson (1942) c. V; Brant, James Madison, The Virginia Revolutionist (1941) cc. XII, XV; James, The Struggle for Religious Liberty in Virginia (1900) cc. X, XI; Eckenrode, Separation of Church and State in Virginia (1910). These works and Randall, see note 1, will be cited in this opinion by the names of their authors. Citations to \"Jefferson\" refer to The Works of Thomas Jefferson (ed. by Ford, 1904-1905); to \"Madison,\" to The Writings of James Madison (ed. by Hunt, 1901-1910). [12] Brant, cc. XII, XV; James, cc. X, XI; Eckenrode. [13] See Brant, c. XII, particularly at 243. Cf. Madison's Remonstrance, Appendix to this opinion. Jefferson of course held the same view. See note 15.\n\"Madison looked upon . . . religious freedom, to judge from the concentrated attention he gave it, as the fundamental freedom.\" Brant, 243; and see Remonstrance, Par 1, 4, 15, Appendix. [14] See Brant, 245-246. Madison quoted liberally from the Declaration in his Remonstrance and the use made of the quotations indicates that he considered the Declaration to have outlawed the prevailing establishment in principle, if not technically. [15] Jefferson was chairman of the revising committee and chief draftsman. Corevisers were Wythe, Pendleton, Mason and Lee. The first enacted portion of the revision, which became known as Jefferson's Code, was the statute barring entailments. Primogeniture soon followed. Much longer the author was to wait for enactment of the Bill for Religious Freedom; and not until after his death was the corollary bill to be accepted in principle which he considered most important of all, namely, to provide for common education at public expense. See V Jefferson, 153. However, he linked this with disestablishment as corollary prime parts in a system of basic freedoms. I Jefferson, 78.\nJefferson, and Madison by his sponsorship, sought to give the Bill for Establishing Religious Freedom as nearly constitutional status as they could at the time. Acknowledging that one legislature could not \"restrain the acts of succeeding Assemblies. . . and that therefore to declare this act irrevocable would be of no effect in law,\" the Bill's concluding provision as enacted nevertheless asserted: \"Yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.\" 1 Randall, 220. [16] See I Jefferson, 70-71; XII Jefferson, 447; Padover, 80. [17] Madison regarded this action as desertion. See his letter to Monroe of April 12, 1785; II Madison, 129, 131-132; James, cc. X, XI. But see Eckenrode, 91, suggesting it was surrender to the inevitable.\nThe bill provided: \"That for every sum so paid, the Sheriff or Collector shall give a receipt, expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid. . . .\" See also notes 19, 43 infra. A copy of the Assessment Bill is to be found among the Washington manuscripts in the Library of Congress. Papers of George Washington, Vol. 231. Because of its crucial role in the Virginia struggle and bearing upon the First Amendment's meaning, the text of the Bill is set forth in the Supplemental Appendix to this opinion. [18] Eckenrode, 99, 100. [19] Id., 100; II Madison, 113. The bill directed the sheriff to pay \"all sums which . . . may not be appropriated by the person paying the same . . . into the public Treasury, to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise, and to no other use or purpose whatsoever.\" Supplemental Appendix. [20] See generally Eckenrode, c. V; Brant, James, and other authorities cited in note 11 above. [21] II Madison, 183; and the Appendix to this opinion. Eckenrode, 100 ff. See also Fleet, Madison's \"Detached Memoranda\" (1946) III William & Mary Q. (3d Series) 534, 554-562. [22] The major causes assigned for its defeat include the elevation of Patrick Henry to the governorship in November of 1784; the blunder of the proponents in allowing the Bill for Incorporations to come to the floor and incur defeat before the Assessment Bill was acted on; Madison's astute leadership, taking advantage of every \"break\" to convert his initial minority into a majority, including the deferment of action on the third reading to the fall; the Remonstrance, bringing a flood of protesting petitions; and the general poverty of the time. See Eckenrode, c. V, for an excellent short, detailed account. [23] See James, Brant, op. cit. supra note 11. [24] V Madison, 176. Cf. notes 33, 37. [25] V Madison, 132. [26] Brant, 250. The assurance made first to his constituents was responsible for Madison's becoming a member of the Virginia Convention which ratified the Constitution. See James, 154-158. [27] The amendment with respect to religious liberties read, as Madison introduced it: \"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.\" 1 Annals of Congress 434. In the process of debate this was modified to its present form. See especially 1 Annals of Congress 729-731, 765; also note 34. [28] See text of the Remonstrance, Appendix; also notes 13, 15, 24, 25 supra and text.\nMadison's one exception concerning restraint was for \"preserving public order.\" Thus he declared in a private letter, IX Madison, 484, 487, written after the First Amendment was adopted: \"The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded agst. by an entire abstinance of the Govt. from interference in any way whatever, beyond the necessity of preserving public order, & protecting each sect agst. trespasses on its legal rights by others.\" Cf. note 9. [29] The third ground of remonstrance, see the Appendix, bears repetition for emphasis here: \"Because, it is proper to take alarm at the first experiment on our liberties . . The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that . . . the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?\" (Emphasis added.) II Madison 183, 185-186. [30] Eckenrode, 105, in summary of the Remonstrance. [31] \"Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretention falsified by the contradictory opinions of Rulers in all ages, and throughout the world: The second an unhallowed perversion of the means of salvation.\" Remonstrance, Appendix, Par. 5; II Madison 183, 187. [32] As is pointed out above, note 3, and in Part IV infra, Cochran v. Board of Education, 281 U.S. 370, was not such a case. [33] See text supra at notes 24, 25. Madison, of course, was but one of many holding such views, but nevertheless agreeing to the common understanding for adoption of a Bill of Rights in order to remove all doubt engendered by the absence of explicit guaranties in the original Constitution.\nBy 1791 the great fight over establishments had ended, although some vestiges remained then and later, even in Virginia. The glebes, for example, were not sold there until 1802. Cf. Eckenrode, 147. Fixing an exact date for \"disestablishment\" is almost impossible, since the process was piecemeal. Although Madison failed in having the Virginia Bill of Rights declare explicitly against establishment in 1776, cf. note 14 and text supra, in 1777 the levy for support of the Anglican clergy was suspended. It was never resumed. Eckenrode states: \"This act, in effect, destroyed the establishment. Many dates have been given for its end, but it really came on January 1, 1777, when the act suspending the payment of tithes became effective. This was not seen at the time. . . . But in freeing almost half of the taxpayers from the burden of the state religion, the state religion was at an end. Nobody could be forced to support it, and an attempt to levy tithes upon Anglicans alone would be to recruit the ranks of dissent.\" P. 53. See also pp. 61, 64. The question of assessment however was revived \"with far more strength than ever, in the summer of 1784.\" Id., 64. It would seem more factual therefore to fix the time of disestablishment as of December, 1785-January, 1786, when the issue in large was finally settled. [34] At one point the wording was proposed: \"No religion shall be established by law, nor shall the equal rights of conscience be infringed.\" 1 Annals of Congress 729. Cf. note 27. Representative Huntington of Connecticut feared this might be construed to prevent judicial enforcement of private pledges. He stated \"that he feared . . . that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it. The ministers of their congregations to the Eastward were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner. These things were regulated by by-laws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers or building of places of worship might be construed into a religious establishment.\" 1 Annals of Congress 730.\nTo avoid any such possibility, Madison suggested inserting the word \"national\" before \"religion,\" thereby not only again disclaiming intent to bring about the result Huntington feared but also showing unmistakably that \"establishment\" meant public \"support\" of religion in the financial sense. 1 Annals of Congress 731. See also IX Madison, 484-487. [35] The decision most closely touching the question, where it was squarely raised, is Quick Bear v. Leupp, 210 U.S. 50. The Court distinguished sharply between appropriations from public funds for the support of religious education and appropriations from funds held in trust by the Government essentially as trustee for private individuals, Indian wards, as beneficial owners. The ruling was that the latter could be disbursed to private, religious schools at the designation of those patrons for paying the cost of their education. But it was stated also that such a use of public moneys would violate both the First Amendment and the specific statutory declaration involved, namely, that \"it is hereby declared to be the settled policy of the Government to hereafter make no appropriation whatever for education in any sectarian school.\" 210 U.S. at 79. Cf. Ponce v. Roman Catholic Apostolic Church, 210 U.S. 296, 322. And see Bradfield v. Roberts, 175 U.S. 291, an instance of highly artificial grounding to support a decision sustaining an appropriation for the care of indigent patients pursuant to a contract with a private hospital. Cf. also the authorities cited in note 9. [36] See text at note 1. [37] \". . . but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.\" Const., Art. VI, \u00a7 3. See also the two forms prescribed for the President's Oath or Affirmation. Const., Art. II, \u00a7 1. Cf. Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277; United States v. Lovett, 328 U.S. 303. [38] In the words of the Virginia statute, following the portion of the preamble quoted at the beginning of this opinion: \". . . even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry these temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind. . . .\" Cf. notes 29, 30, 31 and text supra. [39] See note 38. [40] See Bower, Church and State in Education (1944) 58: \". . . the fundamental division of the education of the whole self into the secular and the religious could not be justified on the grounds of either a sound educational philosophy or a modern functional concept of the relation of religion to personal and social experience.\" See also Vere, The Elementary School, in Essays on Catholic Education in the United States (1942) 110-111; Gabel, Public Funds for Church and Private Schools (1937) 737-739. [41] It would seem a strange ruling that a \"reasonable,\" that is, presumably a small, license fee cannot be placed upon the exercise of the right of religious instruction, yet that under the correlative constitutional guaranty against \"an establishment\" taxes may be levied and used to aid and promote religious instruction, if only the amounts so used are small. See notes 30-31 supra and text.\nMadison's objection to \"three pence\" contributions and his stress upon \"denying the principle\" without waiting until \"usurped power had . . . entangled the question in precedents,\" note 29, were reinforced by his further characterization of the Assessment Bill: \"Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance.\" Remonstrance, Par. 9; II Madison 183, 188. [42] If it is part of the state's function to supply to religious schools or their patrons the smaller items of educational expense, because the legislature may say they perform a public function, it is hard to see why the larger ones also may not be paid. Indeed, it would seem even more proper and necessary for the state to do this. For if one class of expenditures is justified on the ground that it supports the general cause of education or benefits the individual, or can be made to do so by legislative declaration, so even more certainly would be the other. To sustain payment for transportation to school, for textbooks, for other essential materials, or perhaps for school lunches, and not for what makes all these things effective for their intended end, would be to make a public function of the smaller items and their cumulative effect, but to make wholly private in character the larger things without which the smaller could have no meaning or use. [43] \"Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society; which cannot be effected without a competent provision for learned teachers, who may be thereby enabled to devote their time and attention to the duty of instructing such citizens, as from their circumstances and want of education, cannot otherwise attain such knowledge; and it is judged that such provision may be made by the Legislature, without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of pre-eminence amongst the different societies of communities of Christians; . . . .\" Supplemental Appendix; Foote, Sketches of Virginia (1850) 340. [44] \"Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world. . . . Because the establishment in question is not necessary for the support of Civil Government. . . . What influence in fact have ecclesiastical establishments had on Civil Society? . . . in no instance have they been seen the guardians of the liberties of the people.\" II Madison 183, 187, 188. [45] \"Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.\" II Madison 183, 187. [46] \"At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that `Christian forbearance, love and charity,' which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased.\" II Madison 183, 189. [47] In this case briefs amici curiae have been filed on behalf of various organizations representing three religious sects, one labor union, the American Civil Liberties Union, and the states of Illinois, Indiana, Louisiana, Massachusetts, Michigan and New York. All these states have laws similar to New Jersey's and all of them, with one religious sect, support the constitutionality of New Jersey's action. The others oppose it. Maryland and Mississippi have sustained similar legislation. Note 49 infra. No state without legislation of this sort has filed an opposing brief. But at least six states have held such action invalid, namely, Delaware, Oklahoma, New York, South Dakota, Washington and Wisconsin. Note 49 infra. The New York ruling was overturned by amendment to the state constitution in 1938. Constitution of New York, Art. XI, 4 Furthermore, in this case the New Jersey courts divided, the Supreme Court holding the statute and resolution invalid, 132 N.J.L. 98, 39 A.2d 75, the Court of Errors and Appeals reversing that decision, 133 N.J.L. 350, 44 A.2d 333. In both courts, as here, the judges split, one of three dissenting in the Supreme Court, three of nine in the Court of Errors and Appeals. The division is typical. See the cases cited in note 49. [48] See the authorities cited in note 49; and see note 54. [49] Some state courts have sustained statutes granting free transportation or free school books to children attending denominational schools on the theory that the aid was a benefit to the child rather than to the school. See Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930, with which compare Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963; Cochran v. Board of Education, 168 La. 1030, 123 So. 664, aff'd, 281 U.S. 370; Borden v. Board of Education, 168 La. 1005, 123 So. 655; Board of Education v. Wheat, 174 Md. 314, 199 A. 628; Adams v. St. Mary's County, 180 Md. 550, 26 A.2d 377; Chance v. State Textbook R. & P. Board, 190 Miss. 453, 200 So. 706. See also Bowker v. Baker, 73 Cal. App.2d 653, 167 P.2d 256. Other courts have held such statutes unconstitutional under state constitutions as aid to the schools. Judd v. Board of Education, 278 N.Y. 200, 15 N.E.2d 576, but see note 47 supra; Smith v. Donahue, 202 App. Div. 656, 195 N.Y.S. 715; State ex rel. Traub v. Brown, 36 Del. 181, 172 A. 835; Gurney v. Ferguson, 190 Okla. 254, 122 P.2d 1002; Mitchell v. Consolidated School District, 17 Wash.2d 61, 135 P.2d 79; Van Straten v. Milquet, 180 Wis. 109, 192 N.W. 392. And cf. Hlebanja v. Brewe, 58 S.D. 351, 236 N.W. 296. And since many state constitutions have provisions forbidding the appropriation of public funds for private purposes, in these and other cases the issue whether the statute was for a \"public\" or \"private\" purpose has been present. See Note (1941) 50 Yale L.J. 917, 925. [50] E.g., Gurney v. Ferguson, 190 Okla. 254, 255, 122 P.2d 1002, 1003; Mitchell v. Consolidated School District, 17 Wash.2d 61, 68, 135 P.2d 79, 82; Smith v. Donahue, 202 App. Div. 656, 664, 195 N.Y.S. 715, 722; Board of Education v. Wheat, 174 Md. 314, dissenting opinion at 340, 199 A. 628 at 639. This is true whether the appropriation and payment are in form to the individual or to the institution. Ibid. Questions of this gravity turn upon the purpose and effect of the state's expenditure to accomplish the forbidden object, not upon who receives the amount and applies it to that end or the form and manner of the payment. [51] The payments here averaged roughly $40.00 a year per child. [52] See Part V. [53] See also note 46 supra and Remonstrance, Par. 3. [54] Thus each brief filed here by the supporters of New Jersey's action, see note 47, not only relies strongly on Cochran v. Board of Education, 281 U.S. 370, but either explicitly or in effect maintains that it is controlling in the present case. [55] See text at notes 17-19 supra md authorities cited; also Foote, Sketches of Virginia (1850) c. XV. Madison's entire thesis, as reflected throughout the Remonstrance and in his other writings, as well as in his opposition to the final form of the Assessment Bill, see note 43, was altogether incompatible with acceptance of general and \"nondiscriminatory\" support. See Brant, c. XII. [56] The protections are of a nature which does not require appropriations specially made from the public treasury and earmarked, as is New Jersey's here, particularly for religious institutions or uses. The First Amendment does not exclude religious property or activities from protection against disorder or the ordinary accidental incidents of community life. It forbids support, not protection from interference or destruction.\nIt is a matter not frequently recalled that President Grant opposed tax exemption of religious property as leading to a violation of the principle of separation of church and state. See President Grant's Seventh Annual Message to Congress, December 7, 1875, in IX Messages and Papers of the Presidents (1897) 4288-4289. Garfield, in a letter accepting the nomination for the presidency said: \". . . it would be unjust to our people, and dangerous to our institutions, to apply any portion of the revenues of the nation, or of the States, to the support of sectarian schools. The separation of the Church and the State in everything relating to taxation should be absolute.\" II The Works of James Abram Garfield (ed. by Hinsdale, 1883) 783. [57] Neither do we have here a case of rate-making by which a public utility extends reduced fares to all school children, including patrons of religious schools. Whether or not legislative compulsion upon a private utility to extend such an advantage would be valid, or its extension by a municipally owned system, we are not required to consider. In the former instance, at any rate, and generally if not always in the latter, the vice of using the taxing power to raise funds for the support of religion would not be present. [58] It would seem at least a doubtfully sufficient basis for reasonable classification that some children should be excluded simply because the only school feasible for them to attend, in view of geographic or other situation, might be one conducted in whole or in part for profit. Cf. note 5. [59] See note 7 supra. The resolution was as follows, according to the school board's minutes read in proof: \"The transportation committee recommended the transportation of pupils of Ewing to the Trenton and Pennington High Schools and Catholic Schools by way of public carrier as in recent years. On Motion of Mr. Ralph Ryan and Mr. M. French the same was adopted.\" (Emphasis added.) The New Jersey court's holding that the resolution was within the authority conferred by the state statute is binding on us. Reinman v. Little Rock, 237 U.S. 171, 176; Hadacheck v. Sebastian, 239 U.S. 394, 414. [60] The population of Ewing Township, located near the City of Trenton, was 10,146 according to the census of 1940. Sixteenth Census of the United States, Population, Vol. 1, 674. [61] In Thomas v. Collins, 323 U.S. 516, 530, it was said that the preferred place given in our scheme to the great democratic freedoms secured by the First Amendment gives them \"a sanctity and a sanction not permitting dubious intrusions.\" Cf. Remonstrance, Par. 3, 9. And in other cases it has been held that the usual presumption of constitutionality will not work to save such legislative excursions in this field. United States v. Carolene Products Co., 304 U.S. 144, 152, note 4; see Wechsler, Stone and the Constitution (1946) 46 Col. L. Rev. 764, 795 et seq.\nApart from the Court's admission that New Jersey's present action approaches the verge of her power, it would seem that a statute, ordinance or resolution which on its face singles out one sect only by name for enjoyment of the same advantages as public schools or their students, should be held discriminatory on its face by virtue of that fact alone, unless it were positively shown that no other sects sought or were available to receive the same advantages. [1a] Decl. Rights, Art: 16. [Note in the original.] [1b] Decl. Rights, Art. 1. [Note in the original.] [2a] Art: 16. [Note in the original.] [1c] Art. 16. [Note in the original.] [1d] Decl. Rights-title. [Note in the original.] [*] This copy of the Assessment Bill is from one of the handbills which on December 24, 1784, when the third reading of the bill was postponed, were ordered distributed to the Virginia counties by the House of Delegates. See Journal of the Virginia House of Delegates, December 24, 1784; Eckenrode, 102-103. The bill is therefore in its final form, for it never again reached the floor of the House. 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{"text":"413 U.S. 189 (1973) KEYES ET AL. v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, ET AL. No. 71-507. Supreme Court of the United States. Argued October 12, 1972. Decided June 21, 1973. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT *190 James M. Nabrit III and Gordon G. Greiner argued the cause for petitioners. With them on the brief were Jack Greenberg, Charles Stephen Ralston, Norman J. Chachkin, Robert T. Connery, and Anthony G. Amsterdam. William K. Ris argued the cause for respondents. With him on the brief were Thomas E. Creighton, Benjamin L. Craig, and Michael H. Jackson.[*] *191 MR. JUSTICE BRENNAN delivered the opinion of the Court. This school desegregation case concerns the Denver, Colorado, school system. That system has never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education.[1] Rather, the gravamen of this action, brought in June 1969 in the District Court for the District of Colorado by parents of Denver schoolchildren, is that respondent School Board alone, by use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy, created or maintained racially or ethnically (or both racially and ethnically) segregated schools throughout the school district, entitling petitioners to a decree directing desegregation of the entire school district. The boundaries of the school district are coterminous with the boundaries of the city and county of Denver. There were in 1969, 119 schools[2] with 96,580 pupils *192 in the school system. In early 1969, the respondent School Board adopted three resolutions, Resolutions 1520, 1524, and 1531, designed to desegregate the schools in the Park Hill area in the northeast portion of the city. Following an election which produced a Board majority opposed to the resolutions, the resolutions were rescinded and replaced with a voluntary student transfer program. Petitioners then filed this action, requesting an injunction against the rescission of the resolutions and an order directing that the respondent School Board desegregate and afford equal educational opportunity \"for the School District as a whole.\" App. 32a. The District Court found that by the construction of a new, relatively small elementary school, Barrett, in the middle of the Negro community west of Park Hill, by the gerrymandering of student attendance zones, by the use of so-called \"optional zones,\" and by the excessive use of mobile classroom units, among other things, the respondent School Board had engaged over almost a decade after 1960 in an unconstitutional policy of deliberate racial segregation with respect to the Park Hill schools.[3] The court therefore ordered the Board to desegregate those schools through the implementation of the three rescinded resolutions. 303 F. Supp. 279 and 289 (1969). Segregation in Denver schools is not limited, however, to the schools in the Park Hill area, and not satisfied with their success in obtaining relief for Park Hill, petitioners pressed their prayer that the District Court order desegregation of all segregated schools in the city of Denver, particularly the heavily segregated schools in the core city area.[4] But that court concluded that its *193 finding of a purposeful and systematic program of racial segregation affecting thousands of students in the Park Hill area did not, in itself, impose on the School Board an affirmative duty to eliminate segregation throughout the school district. Instead, the court fractionated the district and held that petitioners had to make a fresh showing of de jure segregation in each area of the city for which they sought relief. Moreover, the District Court held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city. Under this restrictive approach, the District Court concluded that petitioners' evidence of intentionally discriminatory School Board action in areas of the district other than Park Hill was insufficient to \"dictate the conclusion that this is de jure segregation which calls for an all-out effort to desegregate. It is more like de facto segregation, with respect to which the rule is that the court cannot order desegregation in order to provide a better balance.\" 313 F. Supp. 61, 73 (1970). Nevertheless, the District Court went on to hold that the proofs established that the segregated core city schools were educationally inferior to the predominantly \"white\" or \"Anglo\" schools in other parts of the district\u2014that is, \"separate facilities . . . unequal in the quality of education provided.\" Id., at 83. Thus, the court held that, under the doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), respondent School Board constitutionally \"must at a minimum . . . offer an equal educational opportunity,\" 313 F. Supp., at 83, and, therefore, *194 although all-out desegregation \"could not be decreed, . . . the only feasible and constitutionally acceptable program\u2014the only program which furnishes anything approaching substantial equality\u2014is a system of desegregation and integration which provides compensatory education in an integrated environment.\" 313 F. Supp. 90, 96 (1970). The District Court then formulated a varied remedial plan to that end which was incorporated in the Final Decree.[5] Respondent School Board appealed, and petitioners cross-appealed, to the Court of Appeals for the Tenth Circuit. That court sustained the District Court's finding that the Board had engaged in an unconstitutional policy of deliberate racial segregation with respect to the Park Hill schools and affirmed the Final Decree in that respect. As to the core city schools, however, the Court of Appeals reversed the legal determination of the District Court that those schools were maintained in violation *195 of the Fourteenth Amendment because of the unequal educational opportunity afforded, and therefore set aside so much of the Final Decree as required desegregation and educational improvement programs for those schools. 445 F.2d 990 (1971). In reaching that result, the Court of Appeals also disregarded respondent School Board's deliberate racial segregation policy respecting the Park Hill schools and accepted the District Court's finding that petitioners had not proved that respondent had a like policy addressed specifically to the core city schools. We granted petitioners' petition for certiorari to review the Court of Appeals' judgment insofar as it reversed that part of the District Court's Final Decree as pertained to the core city schools. 404 U.S. 1036 (1972). The judgment of the Court of Appeals in that respect is modified to vacate instead of reverse the Final Decree. The respondent School Board has cross-petitioned for certiorari to review the judgment of the Court of Appeals insofar as it affirmed that part of the District Court's Final Decree as pertained to the Park Hill schools. Docket No. 71-572, School District No. 1 v. Keyes. The cross-petition is denied.\nI Before turning to the primary question we decide today, a word must be said about the District Court's method of defining a \"segregated\" school. Denver is a triethnic, as distinguished from a bi-racial, community. The overall racial and ethnic composition of the Denver public schools is 66% Anglo, 14% Negro, and 20% Hispano.[6] The District Court, in assessing the question of *196 de jure segregation in the core city schools, preliminarily resolved that Negroes and Hispanos should not be placed in the same category to establish the segregated character of a school. 313 F. Supp., at 69. Later, in determining the schools that were likely to produce an inferior educational opportunity, the court concluded that a school would be considered inferior only if it had \"a concentration of either Negro or Hispano students in the general area of 70 to 75 percent.\" Id., at 77. We intimate no opinion whether the District Court's 70%-to-75% requirement was correct. The District Court used those figures to signify educationally inferior schools, and there is no suggestion in the record that those same figures were or would be used to define a \"segregated\" school in the de jure context. What is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school's student body, other factors, such as the racial and ethnic composition of faculty and staff and the community and administration attitudes toward the school, must be taken into consideration. The District Court has recognized these specific factors as elements of the definition of a \"segregated\" school, id., at 74, and we may therefore infer that the court will consider them again on remand. *197 We conclude, however, that the District Court erred in separating Negroes and Hispanos for purposes of defining a \"segregated\" school. We have held that Hispanos constitute an identifiable class for purposes of the Fourteenth Amendment. Hernandez v. Texas, 347 U.S. 475 (1954). See also United States v. Texas Education Agency, 467 F.2d 848 (CA5 1972) (en banc); Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (CA5 1972) (en banc); Alvarado v. El Paso Independent School District, 445 F.2d 1011 (CA5 1971); Soria v. Oxnard School District, 328 F. Supp. 155 (CD Cal. 1971); Romero v. Weakley, 226 F.2d 399 (CA9 1955). Indeed, the District Court recognized this in classifying predominantly Hispano schools as \"segregated\" schools in their own right. But there is also much evidence that in the Southwest Hispanos and Negroes have a great many things in common. The United States Commission on Civil Rights has recently published two Reports on Hispano education in the Southwest.[7] Focusing on students in the States of Arizona, California, Colorado, New Mexico, and Texas, the Commission concluded that Hispanos suffer from the same educational inequities as Negroes and American Indians.[8] In fact, the District Court itself recognized that \"[o]ne of the things which the Hispano has in common with the Negro is economic and cultural deprivation *198 and discrimination.\" 313 F. Supp., at 69. This is agreement that, though of different origins, Negroes and Hispanos in Denver suffer identical discrimination in treatment when compared with the treatment afforded Anglo students. In that circumstance, we think petitioners are entitled to have schools with a combined predominance of Negroes and Hispanos included in the category of \"segregated\" schools.\nII In our view, the only other question that requires our decision at this time is that subsumed in Question 2 of the questions presented by petitioners, namely, whether the District Court and the Court of Appeals applied an incorrect legal standard in addressing petitioners' contention that respondent School Board engaged in an unconstitutional policy of deliberate segregation in the core city schools. Our conclusion is that those courts did not apply the correct standard in addressing that contention.[9] Petitioners apparently concede for the purposes of this case that in the case of a school system like Denver's, where no statutory dual system has ever existed, plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action. Petitioners proved that for almost a decade after 1960 respondent School Board had engaged in an unconstitutional policy of deliberate racial segregation in the Park Hill schools. Indeed, the District Court found that \"[b]etween 1960 and 1969 the Board's policies *199 with respect to these northeast Denver schools show an undeviating purpose to isolate Negro students\" in segregated schools \"while preserving the Anglo character of [other] schools.\" 303 F. Supp., at 294. This finding did not relate to an insubstantial or trivial fragment of the school system. On the contrary, respondent School Board was found guilty of following a deliberate segregation policy at schools attended, in 1969, by 37.69% of Denver's total Negro school population, including one-fourth of the Negro elementary pupils, over two-thirds of the Negro junior high pupils, and over two-fifths of the Negro high school pupils.[10] In addition, *200 there was uncontroverted evidence that teachers and staff had for years been assigned on the basis of a minority teacher to a minority school throughout the school system. Respondent argues, however, that a finding of state-imposed segregation as to a substantial portion of the school system can be viewed in isolation from the rest of the district, and that even if state-imposed segregation does exist in a substantial part of the Denver school system, it does not follow that the District Court could predicate on that fact a finding that the entire school system is a dual system. We do not agree. We have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty \"to effectuate a transition to a racially nondiscriminatory school system,\" Brown v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II), see also Green v. County School Board, 391 U.S. 430, 437-438 (1968), that is, to eliminate from the public schools within their school system \"all vestiges of state-imposed segregation.\" Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971).[11] *201 This is not a case, however, where a statutory dual system has ever existed. Nevertheless, where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system. Several considerations support this conclusion. First, it is obvious that a practice of concentrating Negroes in certain schools by structuring attendance zones or designating \"feeder\" schools on the basis of race has the reciprocal effect of keeping other nearby schools predominantly white.[12] Similarly, the practice of building a school\u2014such as the Barrett Elementary School in this case\u2014to a certain size and in a certain location, \"with conscious knowledge that it would *202 be a segregated school,\" 303 F. Supp., at 285, has a substantial reciprocal effect on the racial composition of other nearby schools. So also, the use of mobile classrooms, the drafting of student transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construction, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concentration within the schools. We recognized this in Swann when we said: \"They [school authorities] must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. \"In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools *203 which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of `neighborhood zoning.' Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with `neighborhood zoning,' further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy.\" 402 U.S., at 20-21. In short, common sense dictates the conclusion that racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions. This is not to say, of course, that there can never be a case in which the geographical structure of, or the natural boundaries within, a school district may have the effect of dividing the district into separate, identifiable and unrelated units. Such a determination is essentially a question of fact to be resolved by the trial court in the first instance, but such cases must be rare. In the absence of such a determination, proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system. Of course, where that finding is made, as in cases involving statutory dual systems, the school authorities have an affirmative duty \"to effectuate a transition to a racially nondiscriminatory school system.\" Brown II, supra, at 301. *204 On remand, therefore, the District Court should decide in the first instance whether respondent School Board's deliberate racial segregation policy with respect to the Park Hill schools constitutes the entire Denver school system a dual school system. We observe that on the record now before us there is indication that Denver is not a school district which might be divided into separate, identifiable and unrelated units. The District Court stated, in its summary of findings as to the Park Hill schools, that there was \"a high degree of interrelationship among these schools, so that any action by the Board affecting the racial composition of one would almost certainly have an effect on the others.\" 303 F. Supp., at 294. And there was cogent evidence that the ultimate effect of the Board's actions in Park Hill was not limited to that area: the three 1969 resolutions designed to desegregate the Park Hill schools changed the attendance patterns of at least 29 schools attended by almost one-third of the pupils in the Denver school system.[13] This suggests that the official segregation in Park Hill affected the racial composition of schools throughout the district. On the other hand, although the District Court did not state this, or indeed any, reason why the Park Hill finding was disregarded when attention was turned to the core city schools\u2014beyond saying that the Park Hill and core city areas were in its view \"different\"\u2014 the areas, although adjacent to each other, are separated by Colorado Boulevard, a six-lane highway. From the record, it is difficult to assess the actual significance of Colorado Boulevard to the Denver school system. The Boulevard runs the length of the school district, but at *205 least two elementary schools, Teller and Steck, have attendance zones which cross the Boulevard. Moreover, the District Court, although referring to the Boulevard as \"a natural dividing line,\" 303 F. Supp., at 282, did not feel constrained to limit its consideration of de jure segregation in the Park Hill area to those schools east of the Boulevard. The court found that by building Barrett Elementary School west of the Boulevard and by establishing the Boulevard as the eastern boundary of the Barrett attendance zone, the Board was able to maintain for a number of years the Anglo character of the Park Hill schools. This suggests that Colorado Boulevard is not to be regarded as the type of barrier that of itself could confine the impact of the Board's actions to an identifiable area of the school district, perhaps because a major highway is generally not such an effective buffer between adjoining areas. Cf. Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33 (1971). But this is a factual question for resolution by the District Court on remand. In any event, inquiry whether the District Court and the Court of Appeals applied the correct legal standards in addressing petitioners' contention of deliberate segregation in the core city schools is not at an end even if it be true that Park Hill may be separated from the rest of the Denver school district as a separate, identifiable, and unrelated unit.\nIII The District Court proceeded on the premise that the finding as to the Park Hill schools was irrelevant to the consideration of the rest of the district, and began its examination of the core city schools by requiring that petitioners prove all of the essential elements of de jure segregation\u2014that is, stated simply, a current condition of segregation resulting from intentional state action *206 directed specifically to the core city schools.[14] The segregated character of the core city schools could not be and is not denied. Petitioners' proof showed that at the time of trial 22 of the schools in the core city area were less than 30% in Anglo enrollment and 11 of the schools were less than 10% Anglo.[15] Petitioners also introduced substantial evidence demonstrating the existence of a disproportionate racial and ethnic composition of faculty and staff at these schools. On the question of segregative intent, petitioners presented evidence tending to show that the Board, through its actions over a period of years, intentionally created and maintained the segregated character of the core city schools. Respondents countered this evidence by arguing that the segregation in these schools is the result of a racially neutral \"neighborhood school policy\" *207 and that the acts of which petitioners complain are explicable within the bounds of that policy. Accepting the School Board's explanation, the District Court and the Court of Appeals agreed that a finding of de jure segregation as to the core city schools was not permissible since petitioners had failed to prove \"(1) a racially discriminatory purpose and (2) a causal relationship between the acts complained of and the racial imbalance admittedly existing in those schools.\" 445 F.2d, at 1006. This assessment of petitioners' proof was clearly incorrect. Although petitioners had already proved the existence of intentional school segregation in the Park Hill schools, this crucial finding was totally ignored when attention turned to the core city schools. Plainly, a finding of intentional segregation as to a portion of a school system is not devoid of probative value in assessing the school authorities' intent with respect to other parts of the same school system. On the contrary, where, as here, the case involves one school board, a finding of intentional segregation on its part in one portion of a school system is highly relevant to the issue of the board's intent with respect to other segregated schools in the system. This is merely an application of the well-settled evidentiary principle that \"the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent.\" 2 J. Wigmore, Evidence 200 (3d ed. 1940). \"Evidence that similar and related offenses were committed. . . tend[s] to show a consistent pattern of conduct highly relevant to the issue of intent.\" Nye & Nissen v. United States, 336 U.S. 613, 618 (1949). Similarly, a finding of illicit intent as to a meaningful portion of the item under consideration has substantial probative value on the question of illicit intent as to *208 the remainder. See, for example, the cases cited in 2 Wigmore, supra, at 301-302. And \"[t]he foregoing principles are equally as applicable to civil cases as to criminal cases . . . .\" Id., at 300. See also C. McCormick, Evidence 329 (1954). Applying these principles in the special context of school desegregation cases, we hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. This is true even if it is determined that different areas of the school district should be viewed independently of each other because, even in that situation, there is high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the school system, similar impermissible considerations have motivated their actions in other areas of the system. We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann[16] is purpose or intent to segregate. Where school authorities have been found to have practiced purposeful segregation in part of a school system, they may be expected to oppose system-wide desegregation, as did the respondents in this case, on the ground that their purposefully segregative actions were isolated and individual events, thus leaving plaintiffs with the burden of proving otherwise. But at that point where an intentionally segregative *209 policy is practiced in a meaningful or significant segment of a school system, as in this case, the school authorities cannot be heard to argue that plaintiffs have proved only \"isolated and individual\" unlawfully segregative actions. In that circumstance, it is both fair and reasonable to require that the school authorities bear the burden of showing that their actions as to other segregated schools within the system were not also motivated by segregative intent. This burden-shifting principle is not new or novel. There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, \"is merely a question of policy and fairness based on experience in the different situations.\" 9 J. Wigmore, Evidence \u00a7 2486, at 275 (3d ed. 1940). In the context of racial segregation in public education, the courts, including this Court, have recognized a variety of situations in which \"fairness\" and \"policy\" require state authorities to bear the burden of explaining actions or conditions which appear to be racially motivated. Thus, in Swann, 402 U. S., at 18, we observed that in a system with a \"history of segregation,\" \"where it is possible to identify a `white school' or a `Negro school' simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.\" Again, in a school system with a history of segregation, the discharge of a disproportionately large number of Negro teachers incident to desegregation \"thrust[s] upon the School Board the burden of justifying its conduct by clear and convincing evidence.\" Chambers v. Hendersonville City Board of Education, 364 F.2d 189, 192 (CA4 1966) (en banc). See also United States v. Jefferson County Board of Education, 372 F. *210 2d 836, 887-888 (CA5 1966), aff'd en banc, 380 F.2d 385 (1967); North Carolina Teachers Assn. v. Asheboro City Board of Education, 393 F.2d 736, 743 (CA4 1968) (en banc); Williams v. Kimbrough, 295 F. Supp. 578, 585 (WD La. 1969); Bonner v. Texas City Independent School District, 305 F. Supp. 600, 621 (SD Tex. 1969). Nor is this burden-shifting principle limited to former statutory dual systems. See, e. g., Davis v. School District of the City of Pontiac, 309 F. Supp. 734, 743, 744 (ED Mich. 1970), aff'd, 443 F.2d 573 (CA6 1971); United States v. School District No. 151, 301 F. Supp. 201, 228 (ND Ill. 1969), modified on other grounds, 432 F.2d 1147 (CA7 1970). Indeed, to say that a system has a \"history of segregation\" is merely to say that a pattern of intentional segregation has been established in the past. Thus, be it a statutory dual system or an allegedly unitary system where a meaningful portion of the system is found to be intentionally segregated, the existence of subsequent or other segregated schooling within the same system justifies a rule imposing on the school authorities the burden of proving that this segregated schooling is not also the result of intentionally segregative acts. In discharging that burden, it is not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions. The courts below attributed much significance to the fact that many of the Board's actions in the core city area antedated our decision in Brown. We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remoteness *211 in time certainly does not make those actions any less \"intentional.\" This is not to say, however, that the prima facie case may not be met by evidence supporting a finding that a lesser degree of segregated schooling in the core city area would not have resulted even if the Board had not acted as it did. In Swann, we suggested that at some point in time the relationship between past segregative acts and present segregation may become so attenuated as to be incapable of supporting a finding of de jure segregation warranting judicial intervention. 402 U.S., at 31-32. See also Hobson v. Hansen, 269 F. Supp. 401, 495 (DC 1967), aff'd sub nom. Smuck v. Hobson, 132 U. S. App. D. C. 372, 408 F.2d 175 (1969).[17] We made it clear, however, that a connection between past segregative acts and present segregation may be present even when not apparent and that close examination is required before concluding that the connection does not exist. Intentional school segregation in the past may have been a factor in creating a natural environment for the growth of further segregation. Thus, if respondent School Board cannot disprove segregative intent, it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools. The respondent School Board invoked at trial its \"neighborhood school policy\" as explaining racial and ethnic concentrations within the core city schools, arguing *212 that since the core city area population had long been Negro and Hispano, the concentrations were necessarily the result of residential patterns and not of purposefully segregative policies. We have no occasion to consider in this case whether a \"neighborhood school policy\" of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting de jure segregation. It is enough that we hold that the mere assertion of such a policy is not dispositive where, as in this case, the school authorities have been found to have practiced de jure segregation in a meaningful portion of the school system by techniques that indicate that the \"neighborhood school\" concept has not been maintained free of manipulation. Our observations in Swann, supra, at 28, are particularly instructive on this score: \"Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. . . . \". . . `Racially neutral' assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a `loaded game board,' affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.\" *213 Thus, respondent School Board having been found to have practiced deliberate racial segregation in schools attended by over one-third of the Negro school population, that crucial finding establishes a prima facie case of intentional segregation in the core city schools. In such case, respondent's neighborhood school policy is not to be determinative \"simply because it appears to be neutral.\" IV In summary, the District Court on remand, first, will afford respondent School Board the opportunity to prove its contention that the Park Hill area is a separate, identifiable and unrelated section of the school district that should be treated as isolated from the rest of the district. If respondent School Board fails to prove that contention, the District Court, second, will determine whether respondent School Board's conduct over almost a decade after 1960 in carrying out a policy of deliberate racial segregation in the Park Hill schools constitutes the entire school system a dual school system. If the District Court determines that the Denver school system is a dual school system, respondent School Board has the affirmative duty to desegregate the entire system \"root and branch.\" Green v. County School Board, 391 U. S., at 438. If the District Court determines, however, that the Denver school system is not a dual school system by reason of the Board's actions in Park Hill, the court, third, will afford respondent School Board the opportunity to rebut petitioners' prima facie case of intentional segregation in the core city schools raised by the finding of intentional segregation in the Park Hill schools. There, the Board's burden is to show that its policies and practices with respect to schoolsite location, school size, school renovations and additions, student-attendance zones, student assignment and transfer options, mobile classroom units, transportation of students, assignment *214 of faculty and staff, etc., considered together and premised on the Board's so-called \"neighborhood school\" concept, either were not taken in effectuation of a policy to create or maintain segregation in the core city schools, or, if unsuccessful in that effort, were not factors in causing the existing condition of segregation in these schools. Considerations of \"fairness\" and \"policy\" demand no less in light of the Board's intentionally segregative actions. If respondent Board fails to rebut petitioners' prima facie case, the District Court must, as in the case of Park Hill, decree all-out desegregation of the core city schools. The judgment of the Court of Appeals is modified to vacate instead of reverse the parts of the Final Decree that concern the core city schools, and the case is remanded to the District Court for further proceedings consistent with this opinion.[18] It is so ordered. [Map of elementary school boundaries follows this page.] MR. CHIEF JUSTICE BURGER concurs in the result. MR. JUSTICE WHITE took no part in the decision of this case. MR. JUSTICE DOUGLAS. While I join the opinion of the Court, I agree with my Brother POWELL that there is, for the purposes of the *215 Equal Protection Clause of the Fourteenth Amendment as applied to the school cases, no difference between de facto and de jure segregation. The school board is a state agency and the lines that it draws, the locations it selects for school sites, the allocation it makes of students, the budgets it prepares are state action for Fourteenth Amendment purposes. As Judge Wisdom cogently stated in United States v. Texas Education Agency, 467 F.2d 848, segregated schools are often created, not by dual school systems decreed by the legislature, but by the administration of school districts by school boards. Each is state action within the meaning of the Fourteenth Amendment. \"Here school authorities assigned students, faculty, and professional staff; employed faculty and staff; chose sites for schools; constructed new schools and renovated old ones; and drew attendance zone lines. The natural and foreseeable consequence of these actions was segregation of Mexican-Americans. Affirmative action to the contrary would have resulted in desegregation. When school authorities, by their actions, contribute to segregation in education, whether by causing additional segregation or maintaining existing segregation, they deny to the students equal protection of the laws. \"We need not define the quantity of state participation which is a prerequisite to a finding of constitutional violation. Like the legal concepts of `the reasonable man,' `due care,' `causation,' `preponderance of the evidence,' and `beyond a reasonable doubt,' the necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis. Suffice it to say that school authorities here played a significant role in causing or perpetuating unequal educational opportunities for Mexican-Americans, and did so on a system-wide basis.\" Id., at 863-864. *216 These latter acts are often said to create de facto as contrasted with de jure segregation. But, as Judge Wisdom observes, each is but another form of de jure segregation. I think it is time to state that there is no constitutional difference between de jure and de facto segregation, for each is the product of state actions or policies. If a \"neighborhood\" or \"geographical\" unit has been created along racial lines by reason of the play of restrictive covenants that restrict certain areas to \"the elite,\" leaving the \"undesirables\" to move elsewhere, there is state action in the constitutional sense because the force of law is placed behind those covenants. There is state action in the constitutional sense when public funds are dispersed by urban development agencies to build racial ghettoes. Where the school district is racially mixed and the races are segregated in separate schools, where black teachers are assigned almost exclusively to black schools, where the school board closed existing schools located in fringe areas and built new schools in black areas and in distant white areas, where the school board continued the \"neighborhood\" school policy at the elementary level, these actions constitute state action. They are of a kind quite distinct from the classical de jure type of school segregation. Yet calling them de facto is a misnomer, as they are only more subtle types of state action that create or maintain a wholly or partially segregated school system. See Kelly v. Guinn, 456 F.2d 100. When a State forces, aids, or abets, or helps create a racial \"neighborhood,\" it is a travesty of justice to treat that neighborhood as sacrosanct in the sense that its creation is free from the taint of state action. The Constitution and Bill of Rights have described the design of a pluralistic society. The individual has the *217 right to seek such companions as he desires. But a State is barred from creating by one device or another ghettoes that determine the school one is compelled to attend. MR. JUSTICE POWELL concurring in part and dissenting in part. I concur in the remand of this case for further proceedings in the District Court, but on grounds that differ from those relied upon by the Court. This is the first school desegregation case to reach this Court which involves a major city outside the South. It comes from Denver, Colorado, a city and a State which have not operated public schools under constitutional or statutory provisions which mandated or permitted racial segregation.[1] Nor has it been argued that any other legislative actions (such as zoning and housing laws) contributed to the segregation which is at issue.[2] The Court has inquired only to what extent the Denver public school authorities may have contributed to the school segregation which is acknowledged to exist in Denver. The predominantly minority schools are located in two areas of the city referred to as Park Hill and the core city area. The District Court considered that a school *218 with a concentration of 70% to 75% \"Negro or Hispano students\" was identifiable as a segregated school. 313 F. Supp. 61, 77. Wherever one may draw this line, it is undisputed that most of the schools in these two areas are in fact heavily segregated in the sense that their student bodies are overwhelmingly composed of non-Anglo children. The city-wide school mix in Denver is 66% Anglo, 14% Negro, and 20% Hispano. In areas of the city where the Anglo population largely resides, the schools are predominantly Anglo, if not entirely so. The situation in Denver is generally comparable to that in other large cities across the country in which there is a substantial minority population and where desegregation has not been ordered by the federal courts. There is segregation in the schools of many of these cities fully as pervasive as that in southern cities prior to the desegregation decrees of the past decade and a half. The focus of the school desegregation problem has now shifted from the South to the country as a whole. Unwilling and footdragging as the process was in most places, substantial progress toward achieving integration has been made in Southern States.[3] No comparable progress has been made in many nonsouthern cities with large minority populations[4] primarily because of the de facto\/de jure *219 distinction nurtured by the courts and accepted complacently by many of the same voices which denounced the evils of segregated schools in the South.[5] But if our national concern is for those who attend such schools, rather than for perpetuating a legalism rooted in history rather than present reality, we must recognize that the evil of operating separate schools is no less in Denver than in Atlanta.\nI In my view we should abandon a distinction which long since has outlived its time, and formulate constitutional principles of national rather than merely regional application. When Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), was decided, the distinction between *220 de jure and de facto segregation was consistent with the limited constitutional rationale of that case. The situation confronting the Court, largely confined to the Southern States, was officially imposed racial segregation in the schools extending back for many years and usually embodied in constitutional and statutory provisions. The great contribution of Brown I was its holding in unmistakable terms that the Fourteenth Amendment forbids state-compelled or state-authorized segregation of public schools. 347 U.S., at 488, 493-495. Although some of the language was more expansive, the holding in Brown I was essentially negative: It was impermissible under the Constitution for the States, or their instrumentalities, to force children to attend segregated schools. The forbidden action was de jure, and the opinion in Brown I was construed\u2014for some years and by many courts\u2014as requiring only state neutrality, allowing \"freedom of choice\" as to schools to be attended so long as the State itself assured that the choice was genuinely free of official restraint.[6] But the doctrine of Brown I, as amplified by Brown II, 349 U.S. 294 (1955), did not retain its original meaning. In a series of decisions extending from 1954 to 1971 the *221 concept of state neutrality was transformed into the present constitutional doctrine requiring affirmative state action to desegregate school systems.[7] The keystone case was Green v. County School Board, 391 U.S. 430, 437-438 (1968), where school boards were declared to have \"the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.\" The school system before the Court in Green was operating in a rural and sparsely settled county where there were no concentrations of white and black populations, no neighborhood school system (there were only two schools in the county), and none of the problems of an urbanized school district.[8] The Court properly identified the freedom-of-choice program there as a subterfuge, and the language in Green imposing an affirmative duty to convert to a unitary system was appropriate on the facts before the Court. There was, however, reason to question to what extent this duty would apply in the vastly different factual setting of a large city with extensive areas of residential segregation, presenting problems and calling for solutions quite different from those in the rural setting of New Kent County, Virginia. But the doubt as to whether the affirmative-duty concept would flower into a new constitutional principle of general application was laid to rest by Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), in which the duty articulated in Green was applied to the *222 urban school system of metropolitan Charlotte, North Carolina. In describing the residential patterns in Charlotte, the Court noted the \"familiar phenomenon\" in the metropolitan areas of minority groups being \"concentrated in one part of the city,\" 402 U.S., at 25, and acknowledged that: \"Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns.\" 402 U.S., at 14. Despite this recognition of a fundamentally different problem from that involved in Green, the Court nevertheless held that the affirmative-duty rule of Green was applicable, and prescribed for a metropolitan school system with 107 schools and some 84,000 pupils essentially the same remedy\u2014elimination of segregation \"root and branch\"\u2014which had been formulated for the two schools and 1,300 pupils of New Kent County. In Swann, the Court further noted it was concerned only with States having \"a long history\" of officially imposed segregation and the duty of school authorities in those States to implement Brown I. 402 U. S., at 5-6. In so doing, the Court refrained from even considering whether the evolution of constitutional doctrine from Brown I to Green\/Swann undercut whatever logic once supported the de facto\/de jure distinction. In imposing on metropolitan southern school districts an affirmative duty, entailing large-scale transportation of pupils, to eliminate segregation in the schools, the Court required these districts to alleviate conditions which in large part did not result from historic, state-imposed de jure segregation. Rather, the familiar root cause of segregated schools in all the biracial metropolitan areas of our country is essentially *223 the same: one of segregated residential and migratory patterns the impact of which on the racial composition of the schools was often perpetuated and rarely ameliorated by action of public school authorities. This is a national, not a southern, phenomenon. And it is largely unrelated to whether a particular State had or did not have segregative school laws.[9] Whereas Brown I rightly decreed the elimination of state-imposed segregation in that particular section of the country where it did exist, Swann imposed obligations on southern school districts to eliminate conditions which are not regionally unique but are similar both in origin and effect to conditions in the rest of the country. As the remedial obligations of Swann extend far beyond the elimination of the outgrowths of the state-imposed segregation outlawed in Brown, the rationale of Swann points inevitably toward a uniform, constitutional approach to our national problem of school segregation.\nII The Court's decision today, while adhering to the de jure\/de facto distinction, will require the application *224 of the Green\/Swann doctrine of \"affirmative duty\" to the Denver School Board despite the absence of any history of state-mandated school segregation. The only evidence of a constitutional violation was found in various decisions of the School Board. I concur in the Court's position that the public school authorities are the responsible agency of the State, and that if the affirmative-duty doctrine is sound constitutional law for Charlotte, it is equally so for Denver. I would not, however, perpetuate the de jure\/de facto distinction nor would I leave to petitioners the initial tortuous effort of identifying \"segregative acts\" and deducing \"segregative intent.\" I would hold, quite simply, that where segregated public schools exist within a school district to a substantial degree, there is a prima facie case that the duly constituted public authorities (I will usually refer to them collectively as the \"school board\") are sufficiently responsible[10] to warrant imposing upon them a nationally applicable burden to demonstrate they nevertheless are operating a genuinely integrated school system.\nA The principal reason for abandonment of the de jure\/ de facto distinction is that, in view of the evolution of the holding in Brown I into the affirmative-duty doctrine, the distinction no longer can be justified on a principled basis. In decreeing remedial requirements for the Charlotte\/Mecklenburg school district, Swann dealt with a metropolitan, urbanized area in which the basic *225 causes of segregation were generally similar to those in all sections of the country, and also largely irrelevant to the existence of historic, state-imposed segregation at the time of the Brown decision. Further, the extension of the affirmative-duty concept to include compulsory student transportation went well beyond the mere remedying of that portion of school segregation for which former state segregation laws were ever responsible. Moreover, as the Court's opinion today abundantly demonstrates, the facts deemed necessary to establish de jure discrimination present problems of subjective intent which the courts cannot fairly resolve. At the outset, one must try to identify the constitutional right which is being enforced. This is not easy, as the precedents have been far from explicit. In Brown I, after emphasizing the importance of education, the Court said that: \"Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.\" 347 U.S., at 493. In Brown II, the Court identified the \"fundamental principle\" enunciated in Brown I as being the unconstitutionality of \"racial discrimination in public education,\" 349 U.S., at 298, and spoke of \"the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.\" 349 U.S., at 300. Although this and similar language is ambiguous as to the specific constitutional right, it means\u2014as a minimum\u2014that one has the right not to be compelled by state action to attend a segregated school system. In the evolutionary process since 1954, decisions of this Court have added a significant gloss to this original right. Although nowhere expressly articulated in these terms, I would now define it as the right, derived from the Equal Protection Clause, to expect that once the State has assumed *226 responsibility for education, local school boards will operate integrated school systems within their respective districts.[11] This means that school authorities, consistent with the generally accepted educational goal of attaining quality education for all pupils, must make and implement their customary decisions with a view toward enhancing integrated school opportunities. The term \"integrated school system\" presupposes, of course, a total absence of any laws, regulations, or policies supportive of the type of \"legalized\" segregation condemned in Brown. A system would be integrated in accord with constitutional standards if the responsible authorities had taken appropriate steps to (i) integrate faculties and administration; (ii) scrupulously assure equality of facilities, instruction, and curriculum opportunities throughout the district; (iii) utilize their authority to draw attendance zones to promote integration; and (iv) locate new schools, close old ones, and determine the size and grade categories with this same objective in mind. Where school authorities decide to undertake the transportation of students, this also must be with integrative opportunities in mind. The foregoing prescription is not intended to be either definitive or all-inclusive, but rather an indication of the contour characteristics of an integrated school system in which all citizens and pupils may justifiably be confident that racial discrimination is neither practiced nor tolerated. An integrated school system does not *227 mean\u2014and indeed could not mean in view of the residential patterns of most of our major metropolitan areas\u2014that every school must in fact be an integrated unit. A school which happens to be all or predominantly white or all or predominantly black is not a \"segregated\" school in an unconstitutional sense if the system itself is a genuinely integrated one. Having school boards operate an integrated school system provides the best assurance of meeting the constitutional requirement that racial discrimination, subtle or otherwise, will find no place in the decisions of public school officials. Courts judging past school board actions with a view to their general integrative effect will be best able to assure an absence of such discrimination while avoiding the murky, subjective judgments inherent in the Court's search for \"segregative intent.\" Any test resting on so nebulous and elusive an element as a school board's segregative \"intent\" provides inadequate assurance that minority children will not be shortchanged in the decisions of those entrusted with the nondiscriminatory operation of our public schools. Public schools are creatures of the State, and whether the segregation is state-created or state-assisted or merely state-perpetuated should be irrelevant to constitutional principle. The school board exercises pervasive and continuing responsibility over the long-range planning as well as the daily operations of the public school system. It sets policies on attendance zones, faculty employment and assignments, school construction, closings and consolidations, and myriad other matters. School board decisions obviously are not the sole cause of segregated school conditions. But if, after such detailed and complete public supervision, substantial school segregation still persists, the presumption is strong that the school board, by its acts or omissions, is in some part responsible. Where state action and supervision are so *228 pervasive and where, after years of such action, segregated schools continue to exist within the district to a substantial degree, this Court is justified in finding a prima facie case of a constitutional violation. The burden then must fall on the school board to demonstrate it is operating an \"integrated school system.\" It makes little sense to find prima facie violations and the consequent affirmative duty to desegregate solely in those States with state-imposed segregation at the time of the Brown decision. The history of state-imposed segregation is more widespread in our country than the de jure\/de facto distinction has traditionally cared to recognize.[12] As one commentator has noted: \"[T]he three court of appeals decisions denying a constitutional duty to abolish de facto segregation all arose in cities\u2014Cincinnati, Gary, and Kansas City, Kansas\u2014where racial segregation in schools was formerly mandated by state or local law. [Deal v. Cincinnati Board of Education, 369 F.2d 55 (CA6 1966), cert. denied, 389 U.S. 847 (1967); Downs v. Board of Education, 336 F.2d 988 (CA10 1964), cert. denied, 380 U.S. 914 (1965); Bell v. School City of Gary, Ind., 324 F.2d 209 (CA7 1963), cert. denied, 377 U.S. 924 (1964).] Ohio discarded its statute in 1887, Indiana in 1949, and Kansas City not until the advent of Brown. If Negro and white parents in *229 Mississippi are required to bus their children to distant schools on the theory that the consequences of past de jure segregation cannot otherwise be dissipated, should not the same reasoning apply in Gary, Indiana, where no more than five years before Brown the same practice existed with presumably the same effects?\" Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif. L. Rev. 275, 297 (1972).[13] Not only does the de jure\/de facto distinction operate inequitably on communities in different sections of the country, more importantly, it disadvantages minority children as well. As the Fifth Circuit stated: \"`The Negro children in Cleveland, Chicago, Los Angeles, Boston, New York, or any other area of the nation which the opinion classifies under de facto segregation, would receive little comfort from the assertion that the racial make-up of their school system does not violate their constitutional rights because they were born into a de facto society, while the exact same racial make-up of the school system in the 17 Southern and border states violates the *230 constitutional rights of their counterparts, or even their blood brothers, because they were born into a de jure society. All children everywhere in the nation are protected by the Constitution, and treatment which violates their constitutional rights in one area of the country, also violates such constitutional rights in another area.'\" Cisneros v. Corpus Christi Independent School District, 467 F.2d 142, 148 (CA5 1972) (en banc), quoting United States v. Jefferson County Board of Education, 380 F.2d 385, 397 (CA5 1967) (Gewin, J., dissenting).[14] The Court today does move for the first time toward breaking down past sectional disparities, but it clings tenuously to its distinction. It searches for de jure action in what the Denver School Board has done or failed to do, and even here the Court does not rely upon the results or effects of the Board's conduct but feels compelled to find segregative intent:[15] \"We emphasize that the differentiating factor between de jure segregation and so-called de facto *231 segregation to which we referred in Swann is purpose or intent to segregate.\" Ante, at 208 (emphasis is the Court's). The Court's insistence that the \"differentiating factor\" between de jure and de facto segregation be \"purpose or intent\" is difficult to reconcile with the language in so recent a case as Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). In holding there that \"motivation\" is irrelevant, the Court said: \"In addition, an inquiry into the `dominant' motivation of school authorities is as irrelevant as it is fruitless. The mandate of Brown II was to desegregate schools, and we have said that `[t]he measure of any desegregation plan is its effectiveness.' Davis v. School Commissioners of Mobile County, 402 U.S. 33, 37. Thus, we have focused upon the effect\u2014not the purpose or motivation\u2014of a school board's action in determining whether it is a permissible method of dismantling a dual system. . . . \". . . Though the purpose of the new school districts was found to be discriminatory in many of these cases, the courts' holdings rested not on motivation or purpose but on the effect of the action upon the dismantling of the dual school systems involved. That was the focus of the District Court in this case, and we hold that its approach was proper.\" 407 U.S., at 462. I can discern no basis in law or logic for holding that the motivation of school board action is irrelevant in Virginia and controlling in Colorado. It may be argued, of course, that in Emporia a prior constitutional violation *232 had already been proved and that this justifies the distinction. The net result of the Court's language, however, is the application of an effect test to the actions of southern school districts and an intent test to those in other sections, at least until an initial de jure finding for those districts can be made. Rather than straining to perpetuate any such dual standard, we should hold forth-rightly that significant segregated school conditions in any section of the country are a prima facie violation of constitutional rights. As the Court has noted elsewhere: \"Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.\" Hernandez v. Texas, 347 U.S. 475, 482 (1954). (Emphasis added.) B There is thus no reason as a matter of constitutional principle to adhere to the de jure\/de facto distinction in school desegregation cases. In addition, there are reasons of policy and prudent judicial administration which point strongly toward the adoption of a uniform national rule. The litigation heretofore centered in the South already is surfacing in other regions. The decision of the Court today, emphasizing as it does the elusive element of segregative intent, will invite numerous desegregation suits in which there can be little hope of uniformity of result. The issue in these cases will not be whether segregated education exists. This will be conceded in most of them. *233 The litigation will focus as a consequence of the Court's decision on whether segregation has resulted in any \"meaningful or significant\" portion of a school system from a school board's \"segregative intent.\" The intractable problems involved in litigating this issue are obvious to any lawyer. The results of litigation\u2014often arrived at subjectively by a court endeavoring to ascertain the subjective intent of school authorities with respect to action taken or not taken over many years\u2014will be fortuitous, unpredictable and even capricious. The Denver situation is illustrative of the problem. The courts below found evidence of de jure violations with respect to the Park Hill schools and an absence of such violations with respect to the core city schools, despite the fact that actions taken by the school board with regard to those two sections were not dissimilar. It is, for example, quite possible to contend that both the construction of Manual High School in the core city area and Barrett Elementary School in the Park Hill area operated to serve their surrounding Negro communities and, in effect, to merge school attendance zones with segregated residential patterns. See Brief for Petitioners 80-83. Yet findings even on such similar acts will, under the de jure\/de facto distinction, continue to differ, especially since the Court has never made clear what suffices to establish the requisite \"segregative intent\" for an initial constitutional violation. Even if it were possible to clarify this question, wide and unpredictable differences of opinion among judges would be inevitable when dealing with an issue as slippery as \"intent\" or \"purpose,\" especially when related to hundreds of decisions made by school authorities under varying conditions over many years. This Court has recognized repeatedly that it is \"extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a *234 legislative enactment,\" Palmer v. Thompson, 403 U.S. 217, 224 (1971); McGinnis v. Royster, 410 U.S. 263, 276-277 (1973); United States v. O'Brien, 391 U.S. 367, 381 (1968). Whatever difficulties exist with regard to a single statute will be compounded in a judicial review of years of administration of a large and complex school system.[16] Every act of a school board and school administration, and indeed every failure to act where affirmative action is indicated, must now be subject to scrutiny. The most routine decisions with respect to the operation of schools, made almost daily, can affect in varying degrees the extent to which schools are initially segregated, remain in that condition, are desegregated, or\u2014for the long term future\u2014are likely to be one or the other. These decisions include action or nonaction with respect to school building construction and location; the timing of building new schools and their size; the closing and consolidation of schools; the drawing or gerrymandering of *235 student attendance zones; the extent to which a neighborhood policy is enforced; the recruitment, promotion and assignment of faculty and supervisory personnel; policies with respect to transfers from one school to another; whether, and to what extent, special schools will be provided, where they will be located, and who will qualify to attend them; the determination of curriculum, including whether there will be \"tracks\" that lead primarily to college or to vocational training, and the routing of students into these tracks; and even decisions as to social, recreational, and athletic policies. In Swann the Court did not have to probe into segregative intent and proximate cause with respect to each of these \"endless\" factors. The basis for its de jure finding there was rooted primarily in the prior history of the desegregation suit. 402 U.S., at 5-6. But in a case of the present type, where no such history exists, a judicial examination of these factors will be required under today's decision. This will lead inevitably to uneven and unpredictable results, to protracted and inconclusive litigation, to added burdens on the federal courts, and to serious disruption of individual school systems. In the absence of national and objective standards, school boards and administrators will remain in a state of uncertainty and disarray, speculating as to what is required and when litigation will strike.\nC Rather than continue to prop up a distinction no longer grounded in principle, and contributing to the consequences indicated above, we should acknowledge that whenever public school segregation exists to a substantial degree there is prima facie evidence of a constitutional violation by the responsible school board. It is true, of course, that segregated schools\u2014wherever located\u2014are not solely the product of the action or *236 inaction of public school authorities. Indeed, as indicated earlier, there can be little doubt that principal causes of the pervasive school segregation found in the major urban areas of this country, whether in the North, West, or South, are the socio-economic influences which have concentrated our minority citizens in the inner cities while the more mobile white majority disperse to the suburbs. But it is also true that public school boards have continuing, detailed responsibility for the public school system within their district and, as Judge John Minor Wisdom has noted, \"[w]hen the figures [showing segregation in the schools] speak so eloquently, a prima facie case of discrimination is established.\" United States v. Texas Education Agency, 467 F.2d 848, 873 (CA5 1972) (en banc). Moreover, as foreshadowed in Swann and as implicitly held today, school boards have a duty to minimize and ameliorate segregated conditions by pursuing an affirmative policy of desegregation. It is this policy which must be applied consistently on a national basis without regard to a doctrinal distinction which has outlived its time.\nIII The preceding section addresses the constitutional obligation of public authorities in the school districts throughout our country to operate integrated school systems. When the schools of a particular district are found to be substantially segregated, there is a prima facie case that this obligation has not been met. The burden then shifts to the school authorities to demonstrate that they have in fact operated an integrated system as this term is defined, supra, at 227-228. If there is a failure successfully to rebut the prima facie case, the question then becomes what reasonable affirmative desegregative steps district courts may require to *237 place the school system in compliance with the constitutional standard. In short, what specifically is the nature and scope of the remedy? As the Court's opinion virtually compels the finding on remand that Denver has a \"dual school system,\" that city will then be under an \"affirmative duty\" to desegregate its entire system \"root and branch.\" Green v. County School Board, 391 U. S., at 437-438. Again, the critical question is, what ought this constitutional duty to entail? A The controlling case is Swann, supra, and the question which will confront and confound the District Court and Denver School Board is what, indeed, does Swann require? Swann purported to enunciate no new principles, relying heavily on Brown I and II and on Green. Yet it affirmed a district court order which had relied heavily on \"racial ratios\" and sanctioned transportation of elementary as well as secondary pupils. Lower federal courts have often read Swann as requiring far-reaching transportation decrees[17] \"to achieve the greatest possible degree of actual *238 desegregation.\" 402 U.S., at 26. In the context of a large urban area, with heavy residential concentrations of white and black citizens in different\u2014and widely separated\u2014sections of the school district, extensive dispersal and transportation of pupils is inevitable if Swann is read as expansively as many courts have been reading it to date. To the extent that Swann may be thought to require large-scale or long-distance transportation of students in our metropolitan school districts, I record my profound misgivings. Nothing in our Constitution commands or encourages any such court-compelled disruption of public education. It may be more accurate to view Swann as having laid down a broad rule of reason under which desegregation remedies must remain flexible and other values and interests be considered. Thus the Court recognized that school authorities, not the federal judiciary, must be charged in the first instance with the task of desegregating local school systems. Id., at 16. It noted that school boards in rural areas can adjust more readily to this task than those in metropolitan districts \"with dense and shifting population, numerous schools, congested and complex traffic patterns.\" Id., at 14. Although the use of pupil transportation was approved as a remedial device, transportation orders are suspect \"when the time or distance of travel is so great *239 as to either risk the health of the children or significantly impinge on the educational process.\" Id., at 30-31. Finally, the age of the pupils to be transported was recognized by the Court in Swann as one important limitation on the time of student travel. Id., at 31. These factors were supposed to help guide district courts in framing equitable remedies in school desegregation cases.[18] And the Court further emphasized that equitable decrees are inherently sensitive, not solely to the degree of desegregation to be achieved, but to a variety of other public and private interests: \"[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. Id., at 15-16. Those words echoed a similar expression in Brown II, 349 U. S., at 300: \"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.\" Thus, in school desegregation cases, as elsewhere, equity counsels reason, flexibility, and balance. See, e. g., Lemon *240 v. Kurtzman, 411 U.S. 192 (1973). I am aware, of course, that reasonableness in any area is a relative and subjective concept. But with school desegregation, reasonableness would seem to embody a balanced evaluation of the obligation of public school boards to promote desegregation with other, equally important educational interests which a community may legitimately assert. Neglect of either the obligation or the interests destroys the even-handed spirit with which equitable remedies must be approached.[19] Overzealousness in pursuit of any single goal is untrue to the tradition of equity and to the \"balance\" and \"flexibility\" which this Court has always respected.\nB Where school authorities have defaulted in their duty to operate an integrated school system, district courts must insure that affirmative desegregative steps ensue. Many of these can be taken effectively without damaging state and parental interests in having children attend schools within a reasonable vicinity of home. Where desegregative steps are possible within the framework of a system of \"neighborhood education,\" school authorities must pursue them. For example, boundaries of neighborhood attendance zones should be drawn to integrate, to the extent practicable, the school's student body. Construction of new schools should be of *241 such a size and at such a location as to encourage the likelihood of integration, Swann, supra, at 21. Faculty integration should be attained throughout the school system, id., at 19; United States v. Montgomery County Board of Education, 395 U.S. 225 (1969). An optional majority-to-minority transfer program, with the State providing free transportation to desiring students, is also a helpful adjunct to a desegregated school system. Swann, supra, at 26-27. It hardly need be repeated that allocation of resources within the school district must be made with scrupulous fairness among all schools. The above examples are meant to be illustrative, not exhaustive. The point is that the overall integrative impact of such school board decisions must be assessed by district courts in deciding whether the duty to desegregate has been met. For example, \"neighborhood school plans are constitutionally suspect when attendance zones are superficially imposed upon racially defined neighborhoods, and when school construction preserves rather than eliminates the racial homogeny [sic] of given schools.\"[20]Keyes v. School District No. 1, 445 F.2d 990, 1005 (CA10 1971). See also United States v. Board of Education of Tulsa County, 429 F.2d 1253, 1258-1259 (CA10 1970). This does not imply that decisions on faculty assignment, attendance zones, school construction, closing and consolidation, must be made to the detriment of all neutral, nonracial considerations. But these considerations can, with proper school board initiative, generally be met in a manner that will enhance the degree of school desegregation.\nC Defaulting school authorities would have, at a minimum, the obligation to take affirmative steps of the sort *242 outlined in the above section. School boards would, of course, be free to develop and initiate further plans to promote school desegregation. In a pluralistic society such as ours, it is essential that no racial minority feel demeaned or discriminated against and that students of all races learn to play, work, and cooperate with one another in their common pursuits and endeavors. Nothing in this opinion is meant to discourage school boards from exceeding minimal constitutional standards in promoting the values of an integrated school experience. A constitutional requirement of extensive student transportation solely to achieve integration presents a vastly more complex problem. It promises, on the one hand, a greater degree of actual desegregation, while it infringes on what may fairly be regarded as other important community aspirations and personal rights. Such a requirement is also likely to divert attention and resources from the foremost goal of any school system: the best quality education for all pupils. The Equal Protection Clause does, indeed, command that racial discrimination not be tolerated in the decisions of public school authorities. But it does not require that school authorities undertake widespread student transportation solely for the sake of maximizing integration.[21] *243 This obviously does not mean that bus transportation has no place in public school systems or is not a permissible means in the desegregative process. The transporting of school children is as old as public education, and in rural and some suburban settings it is as indispensable as the providing of books. It is presently estimated that approximately half of all American children ride buses to school for reasons unrelated to integration.[22] At the secondary level in particular, where the schools are larger and serve a wider, more dispersed constituency than elementary schools, some form of public or privately financed transportation is often necessary. There is a significant difference, however, in transportation plans voluntarily initiated by local school boards for educational purposes and those imposed by a federal court. The former usually represent a necessary or convenient means of access to the school nearest home; the latter often require lengthy trips for no purpose other than to further integration.[23] Yet the *244 Court in Swann was unquestionably right in describing bus transportation as \"one tool of school desegregation.\" 402 U.S., at 30.[24] The crucial issue is when, under what circumstances, and to what extent such transportation may appropriately be ordered. The answer to this turns\u2014as it does so often in the law\u2014upon a sound exercise of discretion under the circumstances. Swann itself recognized limits to desegregative obligations. It noted that a constitutional requirement of \"any particular degree of racial balance or mixing . . . would be disapproved . . .,\" and sanctioned district court use of mathematical ratios as \"no more than a starting point in the process of shaping a remedy . . . .\" Id., at 24, 25. Thus, particular schools may be all white or all black and still not infringe constitutional rights if the system is genuinely integrated and school authorities are pursuing integrative steps short of extensive and disruptive transportation. The refusal of the Court in Swann to require racial balance in schools throughout the district or the arbitrary elimination of all \"one-race schools,\" id., at 26, is grounded in a recognition that *245 the State, parents, and children all have at stake in school desegregation decrees, legitimate and recognizable interests. The personal interest might be characterized as the desire that children attend community schools near home. Dr. James Coleman testified for petitioners at trial that \"most school systems organize their schools in relation to the residents by having fixed school districts and some of these are very ethnically homogeneous.\" App. 1549a. In Deal v. Cincinnati Board of Education, 369 F. 2d, at 60, the Sixth Circuit summarized the advantages of such a neighborhood system of schools:[25] \"Appellants, however, pose the question of whether the neighborhood system of pupil placement, fairly administered without racial bias, comports with the requirements of equal opportunity if it nevertheless results in the creation of schools with predominantly or even exclusively Negro pupils. The neighborhood system is in wide use throughout the nation and has been for many years the basis of school administration. This is so because it is acknowledged to have several valuable aspects which are an aid to education, such as minimization of safety hazards to children in reaching school, economy of cost in reducing transportation needs, ease of pupil *246 placement and administration through the use of neutral, easily determined standards, and better home-school communication.\" The neighborhood school does provide greater ease of parental and student access and convenience, as well as greater economy of public administration. These are obvious and distinct advantages, but the legitimacy of the neighborhood concept rests on more basic grounds.[26] Neighborhood school systems, neutrally administered, reflect the deeply felt desire of citizens for a sense of community in their public education. Public schools have been a traditional source of strength to our Nation, and that strength may derive in part from the identification of many schools with the personal features of the surrounding neighborhood. Community support, interest, and dedication to public schools may well run higher with a neighborhood attendance pattern: distance may encourage disinterest. Many citizens sense today a decline in the intimacy of our institutions\u2014home, church, and school\u2014which has caused a concomitant decline in the unity and communal spirit of our people. I pass no judgment on this viewpoint, but I do believe that this Court should be wary of compelling in the name of constitutional law what may seem to many a dissolution in the traditional, more personal fabric of their public schools. Closely related to the concept of a community and neighborhood education, are those rights and duties parents have with respect to the education of their children. The law has long recognized the parental duty to nurture, support, and provide for the welfare of children, including *247 their education. In Pierce v. Society of Sisters, 268 U.S. 510, 534-535, a unanimous Court held that: \"Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 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.\" And in Griswold v. Connecticut, 381 U.S. 479, 482 (1965), the Court noted that in Pierce, \"the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments.\" I do not believe recognition of this right can be confined solely to a parent's choice to send a child to public or private school. Most parents cannot afford the luxury of a private education for their children, and the dual obligation of private tuitions and public taxes. Those who may for numerous reasons seek public education for their children should not be forced to forfeit all interest or voice in the school their child attends. It would, of course, be impractical to allow the wishes of particular parents to be controlling. Yet the interest of the parent in the enhanced parentschool and parent-child communication allowed by the neighborhood unit ought not to be suppressed by force of law. In the commendable national concern for alleviating public school segregation, courts may have overlooked the fact that the rights and interests of children affected by a desegregation program also are entitled to consideration. Any child, white or black, who is compelled to leave his neighborhood and spend significant time each *248 day being transported to a distant school suffers an impairment of his liberty and his privacy. Not long ago, James B. Conant wrote that \"[a]t the elementary school level the issue seems clear. To send young children day after day to distant schools by bus seems out of the question.\"[27] A community may well conclude that the portion of a child's day spent on a bus might be used more creatively in a classroom, playground, or in some other extracurricular school activity. Decisions such as these, affecting the quality of a child's daily life, should not lightly be held constitutionally errant. Up to this point I have focused mainly on the personal interests of parents and children which a community may believe to be best protected by a neighborhood system of schools. But broader considerations lead me to question just as seriously any remedial requirement of extensive student transportation solely to further integration. Any such requirement is certain to fall disproportionately on the school districts of our country, depending on their degree of urbanization, financial resources, and their racial composition. Some districts with little or no biracial population will experience little or no educational disruption, while others, notably in large, biracial metropolitan areas, must at considerable expense undertake extensive transportation to achieve the type of integration frequently being ordered by district courts.[28] At a time when public education generally is suffering serious financial malnutrition, the economic burdens of such transportation can be severe, requiring both initial capital outlays and annual operating costs in the millions of dollars.[29] And while constitutional requirements have *249 often occasioned uneven burdens, never have they touched so sensitive a matter as wide differences in the compulsory transportation requirements for literally hundreds of thousands of school children. The argument for student transportation also overlooks the fact that the remedy exceeds that which may be necessary to redress the constitutional evil. Let us use Denver as an example. The Denver School Board, by its action and nonaction, may be legally responsible for some of the segregation that exists. But if one assumes a maximum discharge of constitutional duty by the Denver Board over the past decades, the fundamental problem of residential segregation would persist.[30] It is, indeed, a novel application of equitable power\u2014not to mention a dubious extension of constitutional doctrine\u2014 to require so much greater a degree of forced school integration than would have resulted from purely natural and neutral nonstate causes. The compulsory transportation of students carries a further infirmity as a constitutional remedy. With most constitutional violations, the major burden of remedial action falls on offending state officials. Public officials who act to infringe personal rights of speech, voting, or religious exercise, for example, are obliged to cease the offending act or practice and, where necessary, institute corrective measures. It is they who bear the brunt of remedial action, though other citizens will to varying degrees *250 feel its effects. School authorities responsible for segregation must, at the very minimum, discontinue segregative acts. But when the obligation further extends to the transportation of students, the full burden of the affirmative remedial action is borne by children and parents who did not participate in any constitutional violation. Finally, courts in requiring so far-reaching a remedy as student transportation solely to maximize integration, risk setting in motion unpredictable and unmanageable social consequences. No one can estimate the extent to which dismantling neighborhood education will hasten an exodus to private schools, leaving public school systems the preserve of the disadvantaged of both races. Or guess how much impetus such dismantlement gives the movement from inner city to suburb, and the further geographical separation of the races. Nor do we know to what degree this remedy may cause deterioration of community and parental support of public schools, or divert attention from the paramount goal of quality in education to a perennially divisive debate over who is to be transported where. The problem addressed in this opinion has perplexed courts, school officials, other public authorities, and students of public education for nearly two decades. The problem, especially since it has focused on the \"busing issue,\" has profoundly disquieted the public wherever extensive transportation has been ordered. I make no pretense of knowing the best answers. Yet, the issue in this and like cases comes to this Court as one of constitutional law. As to this issue, I have no doubt whatever. There is nothing in the Constitution, its history, or\u2014until recently\u2014in the jurisprudence of this Court that mandates the employment of forced transportation of young and teenage children to achieve a single interest, *251 as important as that interest may be. We have strayed, quite far as I view it, from the rationale of Brown I and II, as reiterated in Swann, that courts in fashioning remedies must be \"guided by equitable principles\" which include the \"adjusting and reconciling [of] public and private needs,\" Brown II, 349 U. S., at 300. I urge a return to this rationale. This would result, as emphasized above, in no prohibition on court-ordered student transportation in furtherance of desegregation. But it would require that the legitimate community interests in neighborhood school systems be accorded far greater respect. In the balancing of interests so appropriate to a fair and just equitable decree, transportation orders should be applied with special caution to any proposal as disruptive of family life and interests\u2014and ultimately of education itself\u2014as extensive transportation of elementary-age children solely for desegregation purposes. As a minimum, this Court should not require school boards to engage in the unnecessary transportation away from their neighborhoods of elementary-age children.[31] It is at this age level that neighborhood education performs its most vital role. It is with respect to children of tender years that the greatest concern exists for their physical and psychological health. It is also here, at the elementary school, *252 that the rights of parents and children are most sharply implicated.[32] IV The existing state of law has failed to shed light and provide guidance on the two issues addressed in this opinion: (i) whether a constitutional rule of uniform, national application should be adopted with respect to our national problem of school desegregation and (ii), if so, whether the ambiguities of Swann, construed to date almost uniformly in favor of extensive transportation, should be redefined to restore a more viable balance among the various interests which are involved. With all deference, it seems to me that the Court today has addressed neither of these issues in a way that will afford adequate guidance to the courts below in this case or lead to a rational, coherent national policy. The Court has chosen, rather, to adhere to the de facto\/de jure distinction under circumstances, and upon a rationale, which can only lead to increased and inconclusive litigation, and\u2014especially regrettable\u2014to deferment of a nationally consistent judicial position on this subject. There is, of course, state action in every school district in the land. The public schools always have been funded and operated by States and their local subdivisions. It is true that segregated schools, even in the cities of the South, are in large part the product of social and economic factors\u2014and the resulting residential patterns. But there is also not a school district in the United States, with any significant minority school population, in which the school authorities\u2014in one way or the other\u2014have not contributed in some *253 measure to the degree of segregation which still prevails. Instead of recognizing the reality of similar, multiple segregative causes in school districts throughout the country, the Court persists in a distinction whose duality operates unfairly on local communities in one section of the country and on minority children in the others. The second issue relates to the ambiguities of Swann and the judicial disregard of legitimate community and individual interests in framing equitable decrees. In the absence of a more flexible and reasonable standard than that imposed by district courts after Swann, the desegregation which will now be decreed in Denver and other major cities may well involve even more extensive transportation than has been witnessed up to this time. It is well to remember that the course we are running is a long one and the goal sought in the end\u2014so often overlooked\u2014is the best possible educational opportunity for all children. Communities deserve the freedom and the incentive to turn their attention and energies to this goal of quality education, free from protracted and debilitating battles over court-ordered student transportation. The single most disruptive element in education today is the widespread use of compulsory transportation, especially at elementary grade levels. This has risked distracting and diverting attention from basic educational ends, dividing and embittering communities, and exacerbating, rather than ameliorating, interracial friction and misunderstanding. It is time to return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert. This will help assure that integrated school systems will be established and maintained by rational action, will be better understood and supported by parents and children of both races, and will promote the enduring qualities of an integrated society so essential to its genuine success. *254 MR. JUSTICE REHNQUIST, dissenting.\nI The Court notes at the outset of its opinion the differences between the claims made by the plaintiffs in this case and the classical \"de jure\" type of claims made by plaintiffs in cases such as Brown v. Board of Education, 347 U.S. 483 (1954), and its progeny. I think the similarities and differences, not only in the claims, but in the nature of the constitutional violation, deserve somewhat more attention than the Court gives them. In Brown, the Court held unconstitutional statutes then prevalent in Southern and border States mandating that Negro children and white children attend separate schools. Under such a statute, of course, every child in the school system is segregated by race, and there is no racial mixing whatever in the population of any particular school. It is conceded that the State of Colorado and the city of Denver have never had a statute or ordinance of that description. The claim made by these plaintiffs, as described in the Court's opinion, is that the School Board by \"use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy\" took race into account in making school assignments in such a way as to lessen that mixing of races which would have resulted from a racially neutral policy of school assignment. If such claims are proved, those minority students who as a result of such manipulative techniques are forced to attend schools other than those that they would have attended had attendance zones been neutrally drawn are undoubtedly deprived of their constitutional right to equal protection of the laws just as surely as were the plaintiffs in Brown v. Board of Education by the statutorily required segregation in that case. But the fact that invidious *255 racial discrimination is prohibited by the Constitution in the North as well as the South must not be allowed to obscure the equally important fact that the consequences of manipulative drawing of attendance zones in a school district the size of Denver does not necessarily result in denial of equal protection to all minority students within that district. There are significant differences between the proof which would support a claim such as that alleged by plaintiffs in this case, and the total segregation required by statute which existed in Brown. The Court's opinion obscures these factual differences between the situation shown by the record to have existed in Denver and the situations dealt with in earlier school desegregation opinions of the Court. The Court states, ante, at 200, that \"[w]e have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty `to effectuate a transition to a racially nondiscriminatory school system,' Brown v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II). . . .\" That statement is, of course, correct in the Brown context, but in the Brown cases and later ones that have come before the Court the situation which had invariably obtained at one time was a \"dual\" school system mandated by law, by a law which prohibited Negroes and whites from attending the same schools. Since under Brown such a law deprived each Negro child of the equal protection of the laws, there was no need to prove \"the *256 elements of de jure segregation as to each and every school,\" since the law itself had required just that sort of segregation. But in a school district the size of Denver's, it is quite conceivable that the School Board might have engaged in the racial gerrymandering of the attendance boundary between two particular schools in order to keep one largely Negro and Hispano, and the other largely Anglo, as the District Court found to have been the fact in this case. Such action would have deprived affected minority students who were the victims of such gerrymandering of their constitutional right to equal protection of the laws. But if the school board had been evenhanded in its drawing of the attendance lines for other schools in the district, minority students required to attend other schools within the district would have suffered no such deprivation. It certainly would not reflect normal English usage to describe the entire district as \"segregated\" on such a state of facts, and it would be a quite unprecedented application of principles of equitable relief to determine that if the gerrymandering of one attendance zone were proved, particular racial mixtures could be required by a federal district court for every school in the district. It is quite possible, of course, that a school district purporting to adopt racially neutral boundary zones might, with respect to every such zone, invidiously discriminate against minorities, so as to produce substantially the same result as was produced by the statutorily decreed segregation involved in Brown. If that were the case, the consequences would necessarily have to be the same as were the consequences in Brown. But, in the absence of a statute requiring segregation, there must necessarily be the sort of factual inquiry which was unnecessary in those jurisdictions where racial mixing in the schools was forbidden by law. *257 Underlying the Court's entire opinion is its apparent thesis that a district judge is at least permitted to find that if a single attendance zone between two individual schools in the large metropolitan district is found by him to have been \"gerrymandered,\" the school district is guilty of operating a \"dual\" school system, and is apparently a candidate for what is in practice a federal receivership. Not only the language of the Court in the opinion, but its reliance on the case of Green v. County School Board, 391 U.S. 430, 437-438 (1968), indicates that such would be the case. It would therefore presumably be open to the District Court to require, inter alia, that pupils be transported great distances throughout the district to and from schools whose attendance zones have not been gerrymandered. Yet, unless the Equal Protection Clause of the Fourteenth Amendment now be held to embody a principle of \"taint,\" found in some primitive legal systems but discarded centuries ago in ours, such a result can only be described as the product of judicial fiat. Green, supra, represented a marked extension of the principles of Brown v. Board of Education, supra. The Court in Green said: \"It is of course true that for the time immediately after Brown II [349 U.S. 294] the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. . . . Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about . . . .\" 391 U.S., at 435-436. Brown II was a call for the dismantling of wellentrenched dual systems tempered by an awareness that complex and multifaceted problems would arise *258 which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.\" Id., at 437-438. The drastic extension of Brown which Green represented was barely, if at all, explicated in the latter opinion. To require that a genuinely \"dual\" system be disestablished, in the sense that the assignment of a child to a particular school is not made to depend on his race, is one thing. To require that school boards affirmatively undertake to achieve racial mixing in schools where such mixing is not achieved in sufficient degree by neutrally drawn boundary lines is quite obviously something else. The Court's own language in Green makes it unmistakably clear that this significant extension of Brown's prohibition against discrimination, and the conversion of that prohibition into an affirmative duty to integrate, was made in the context of a school system which had for a number of years rigidly excluded Negroes from attending the same schools as were attended by whites. Whatever may be the soundness of that decision in the context of a genuinely \"dual\" school system, where segregation of the races had once been mandated by law, I can see no constitutional justification for it in a situation such as that which the record shows to have obtained in Denver.\nII The Court's opinion gives lip service to the notion that the inquiry as to whether or not the Denver school district was \"segregated\" is a factual one, though it refers *259 in various critical language to the District Court's refusal to find that minority concentration in the core area schools was the result of discriminatory action on the part of the school board. The District Court is said to have \"fractionated\" the district, ante, at 193, and to have \"held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city,\" ibid. It is difficult to know what the Court means by the first of these references, and even more difficult to justify the second in the light of the District Court's opinion. If by \"fractionating\" the district, the Court means that the District Court treated together events that occurred during the same time period, and that it treated those events separately from events that occurred during another time span, this is undoubtedly correct. This is the approach followed by most experienced and careful finders of fact. In commencing that part of its comprehensive opinion which dealt with the \"core area\" schools, the District Court observed: \"The evidentiary as well as the legal approach to the remaining schools is quite different from that which has been outlined above. For one thing, the concentrations of minorities occurred at an earlier date and, in some instances, prior to the Brown decision by the Supreme Court. Community attitudes were different, including the attitudes of the School Board members. Furthermore, the transitions were much more gradual and less perceptible than they were in the Park Hill schools.\" 313 F. Supp. 61, 69. (Emphasis supplied.) The District Court noted, in its opinion of July 31, 1969, the differentiation that the plaintiffs themselves had made between the so-called \"Park Hill\" schools and *260 the \"core area\" schools. The plaintiffs had sought a preliminary injunction prohibiting the school board from rescinding three resolutions which had been adopted by a differently composed school board earlier in 1969 and which would have redrawn school boundary lines in the Park Hill area to achieve greater integration. In its opinion granting that injunction, the District Court said: \"Attention at this hearing has focused primarily on the schools in northeast Denver, and particularly on the area which is commonly called Park Hill. The alleged segregated schools, elementary and junior high schools in this area, have acquired their character as such during the past ten years. The primary reason for this has been the migration of the Negro community eastward from a confined community surrounding what is commonly called `Five Points.' Before 1950 the Negroes all lived in a community bounded roughly by 20th Avenue on the south, 20th Street on the west, York Street on the east, and 38th Avenue on the north. The schools in this area were, and are now, largely Negro schools. However, we are not presently concerned with the validity of this condition. During this period the Negro population was relatively small, and this condition had developed over a long period of time. However, by 1960 and, indeed, at the present time this population is sizeable. As the population has expanded the move has been to the east, first to Colorado Boulevard, a natural dividing line, and later beyond Colorado Boulevard, but within a narrow corridor\u2014more or less fixed north-south boundaries. The migration caused these areas to become substantially Negro and segregated.\" 303 F. Supp. 279, 282. Further reference to the District Court's several opinions *261 shows that the allegedly discriminatory acts of the School Board in the Park Hill area occurred between 1960 and 1969, in the context of a steadily expanding Negro school population in the Park Hill area and heightened sensitivity on the part of the community to the problems raised by integration and segregation. The allegedly discriminatory acts with respect to the \"core area\" schools\u2014New Manual High School, Cole Junior High School, Morey Junior High School, and Boulevard and Columbine Elementary Schools\u2014took place between the years 1952 and 1961. They took place, as indicated by the references to the District Court's opinion noted above, not in a context of a rapidly expanding Negro population, but in a context of a relatively fixed area of the city that had for an indefinite period of time been predominantly Negro. Thus, quite contrary to the intimation of virtual arbitrariness contained in the Court's opinion, the District Court's separate treatment of the claims respecting these two separate areas was absolutely necessary if a careful factual determination, rather than a jumbled hash of unrelated events, was to emerge from the factfinding process. The \"intent\" with which a public body performs an official act is difficult enough to ascertain under the most favorable circumstances. See Palmer v. Thompson, 403 U.S. 217 (1971); McGinnis v. Royster, 410 U.S. 263 (1973). Far greater difficulty is encountered if we are to assess the intentions with which official acts of a school board are performed over a period of years. Not only does the board consist of a number of members, but the membership customarily turns over as a result of frequent periodic elections. Indeed, it was as a result of the 1969 election for membership on the Denver School Board that the Board's policy which had previously favored the correction of racial imbalance by *262 implementation of resolutions was reversed by the election of new members to the Board. These difficulties obviously do not mean that the inquiry must be abandoned, but they do suggest that the care with which the District Court conducted it in this case is an absolutely essential ingredient to its successful conclusion. The Court's bald statement that the District Court \"held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city\" is flatly belied by the following statement in the District Court's opinion: \"Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation.\" 313 F. Supp., at 74-75, n. 18. Thus, it is apparent that the District Court was fully aware that it might take into consideration the intention with which it found the School Board to have performed one act in assessing its intention in performing another act. This is the most that the references in the Court's opinion to evidentiary treatises such as Wigmore and McCormick support. And it should be noted that the cases cited by the Court, and by the authors of the treatises, almost invariably deal with the intention of a particular individual or individuals, and not with the \"intention\" of a public body whose membership is constantly changing. The Court's opinion totally confuses the concept of a permissible inference in such a situation, of which the District Court indicated it was well aware, with what *263 the Court calls a \"presumption,\" which apparently \"shifts . . . the burden of proving\" to the defendant school authority. No case from this Court has ever gone further in this area than to suggest that a finding of intent in one factual situation may support a finding of fact in another related factual situation involving the same factor, a principle with which, as indicated above, the District Court was thoroughly familiar. The District Court cases cited by the Court represent almost entirely the opinions of judges who were themselves finders of fact, concluding as a part of the factfinding process that intent with respect to one act may support a conclusion of a like intent with respect to another. This is but a restatement of the principle of which the District Court showed it was aware. And, obviously, opinions of courts of appeals upholding such findings of the District Court do not themselves support any broader proposition than do the opinions of the District Court in question. Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (CA4 1966), and North Carolina Teachers Assn. v. Asheboro City Board of Education, 393 F.2d 736 (CA4 1968), involved a background of segregation by a law in the State of North Carolina and \"the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation.\" 364 F.2d, at 192. The courts held that the decimation in the ranks of the Negro teachers while white teachers were unaffected, raised an inference of discrimination which cast upon the school board the burden of justifying such decimation. In each case, the school board had offered virtually no evidence supporting any nondiscriminatory basis for the result reached. The cases are thus wholly different in their factual background from the case now before the Court. *264 Also worthy of note is the fact that neither in Chambers nor in Asheboro did the Court of Appeals remand for a further hearing, but in effect ordered judgments for the appellants on the issues considered. This amounted to a determination that the factual finding of the District Court on that issue was \"clearly erroneous,\" and the statement as to presumption was a statement as to the appellate court's method of evaluating the factual finding. This Court is in quite a different position in reviewing this case, with the factual finding of the District Court having been affirmed by the Court of Appeals for the Tenth Circuit, than was the Court of Appeals for the Fourth Circuit in reviewing the factual findings of the District Courts that were before it in Chambers and in Asheboro. Indeed, it would be contrary to settled principles for this Court to upset a factual finding sustained by the Court of Appeals. \"A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error.\" Comstock v. Group of Institutional Investors, 335 U.S. 211, 214 (1948). The Court, doubtless realizing the difficulty of justifying an outright reversal, instead remands for further factual determination under newly enunciated standards governing the evidentiary treatment of the finding as to Park Hill by the District Court. These standards call in some parts of the opinion for establishing a presumption, in other parts for shifting the burden of proof, and in other parts for recognizing a prima facie case. Quite apart from my disagreement with the majority on its constitutional law, I cannot believe it is a service to any of the parties to this litigation to require further factual determination under such a vague and imprecise mandate. But, more fundamentally, I believe that a District Judge thoroughly sympathetic to the plaintiffs' claims gave them the full evidentiary hearing to which *265 they were entitled and carefully considered all of the evidence before him. He showed full awareness of the evidentiary principle that he might infer from the \"segregative intent\" with which he found the Board to have acted in the Park Hill area a like intent with respect to the core area, but he deliberately declined to do so. This was his prerogative as the finder of fact, and his conclusion upon its affirmance by the Court of Appeals is binding upon us.\nIII The Court has taken a long leap in this area of constitutional law in equating the district-wide consequences of gerrymandering individual attendance zones in a district where separation of the races was never required by law with statutes or ordinances in other jurisdictions which did so require. It then adds to this potpourri a confusing enunciation of evidentiary rules in order to make it more likely that the trial court will on remand reach the result which the Court apparently wants it to reach. Since I believe neither of these steps is justified by prior decisions of this Court, I dissent. NOTES [*] Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Sanford Jay Rosen, and Edwin S. Kahn for the American Civil Liberties Union et al.; by Stephen J. Pollak, Richard M. Sharp, David Rubin, Larry F. Hobbs, and Leonard N. Waldbaum for the National Education Association et al.; by Arnold Forster, Paul Hartman, Paul S. Berger, Joseph B. Robison, and Samuel Rabinove for the Anti-Defamation League of B'nai B'rith et al.; and by Mario G. Obledo and Michael Mendelson for the Mexican American Legal Defense and Educational Fund.\nBriefs of amici curiae urging affirmance were filed by Theodore L. Sendak, Attorney General, Wendell C. Hamacher, Deputy Attorney General, and William F. Harvey for the State of Indiana; by Thomas A. Shannon, Donald R. Lincoln, and Paul D. Engstrand for San Diego Unified School District; and by Willis Hannawalt and Vivian Hannawalt for Robert G. Nelson et al. Briefs of amici curiae were filed by Solicitor General Griswold, Assistant Attorney General Norman, James P. Turner, Brian K. Landsberg, and Thomas M. Keeling for the United States, and by David I. Caplan for the Jewish Rights Council, Inc. [1] To the contrary, Art. IX, \u00a7 8, of the Colorado Constitution expressly prohibits any \"classification of pupils . . . on account of race or color.\" As early as 1927, the Colorado Supreme Court held that a Denver practice of excluding black students from school programs at Manual High School and Morey Junior High School violated state law. Jones v. Newlon, 81 Colo. 25, 253 P. 386. [2] There were 92 elementary schools, 15 junior high schools, 2 junior-senior high schools, and 7 senior high schools. In addition, the Board operates an Opportunity School, a Metropolitan Youth Education Center, and an Aircraft Training Facility. [3] The so-called \"Park Hill schools\" are Barrett, Stedman, Hallett, Smith, Philips, and Park Hill Elementary Schools; and Smiley Junior High School. East High School serves the area but is located outside of it. (See map following p. 214.) [4] The so-called \"core city schools\" which are said to be segregated are Boulevard, Bryant-Webster, Columbine, Crofton, Ebert, Elmwood, Elyria, Fairmont, Fairview, Garden Place, Gilpin, Greenlee, Harrington, Mitchell, Smedley, Swansea, Whittier, Wyatt, and Wyman Elementary Schools; Baker, Cole, and Morey Junior High Schools; and East, West, and Manual High Schools. (See map following p. 214.) [5] The first of the District Court's four opinions, 303 F. Supp. 279, was filed July 31, 1969, and granted petitioners' application for a preliminary injunction. The second opinion, 303 F. Supp. 289, was filed August 14, 1969, and made supplemental findings and conclusions. The third opinion, 313 F. Supp. 61, filed March 21, 1970, was the opinion on the merits. The fourth opinion, 313 F. Supp. 90, was on remedy and was filed May 21, 1970. The District Court filed an unreported opinion on October 19, 1971, in which relief was extended to Hallett and Stedman Elementary Schools which were found by the court in its July 31, 1969, opinion to be purposefully segregated but were not included within the scope of the three 1969 Board resolutions. The Court of Appeals filed five unreported opinions: on August 5, 1969, vacating preliminary injunctions; on August 27, 1969, staying preliminary injunction; on September 15, 1969, on motion to amend stay; on October 17, 1969, denying motions to dismiss; and on March 26, 1971, granting stay. MR. JUSTICE BRENNAN, on August 29, 1969, filed an opinion reinstating the preliminary injunction, 396 U.S. 1215, and on April 26, 1971, this Court entered a per curiam order vacating the Court of Appeals' stay, 402 U.S. 182. [6] The parties have used the terms \"Anglo,\" \"Negro,\" and \"Hispano\" throughout the record. We shall therefore use those terms.\n\"Hispano\" is the term used by the Colorado Department of Education to refer to a person of Spanish, Mexican, or Cuban heritage. Colorado Department of Education, Human Relations in Colorado, A Historical Record 203 (1968). In the Southwest, the \"Hispanos\" are more commonly referred to as \"Chicanos\" or \"Mexican-Americans.\" The more specific racial and ethnic composition of the Denver public schools is as follows: Anglo Negro Hispano Pupils No. % No. % No. % Elementary 33,719 61.8 8,297 15.2 12,570 23.0 Junior High 14,848 68.7 2,893 13.4 3,858 17.9 Senior High 14,852 72.8 2,442 12.0 3,101 15.2 ______ _____ _____ _____ _____ _____ Total 63,419 65.7 13,632 14.1 19,529 20.2 [7] United States Commission on Civil Rights, Mexican American Education Study, Report 1, Ethnic Isolation of Mexican Americans in the Public Schools of the Southwest (Apr. 1971); United States Commission on Civil Rights, Mexican American Educational Series, Report 2, The Unfinished Education (Oct. 1971). [8] The Commission's second Report, on p. 41, summarizes its findings: \"The basic finding of this report is that minority students in the Southwest\u2014Mexican Americans, blacks, American Indians\u2014do not obtain the benefits of public education at a rate equal to that of their Anglo classmates.\" [9] Our Brother REHNQUIST argues in dissent that the Court somehow transgresses the \"two-court\" rule. Post, at 264. But at this stage, we have no occasion to review the factual findings concurred in by the two courts below. Cf. Neil v. Biggers, 409 U.S. 188 (1972). We address only the question whether those courts applied the correct legal standard in deciding the case as it affects the core city schools. [10] The Board was found guilty of intentionally segregative acts of one kind or another with respect to the schools listed below. (As to Cole and East, the conclusion rests on the rescission of the resolutions.) PUPILS 1968-1969 Anglo Negro Hispano Total Barrett 1 410 12 423 Stedman 27 634 25 686 Hallett 76 634 41 751 Park Hill 684 223 56 963 Philips 307 203 45 555 Smiley Jr. High 360 1,112 74 1,546 Cole Jr. High 46 884 289 1,219 East High 1,409 1,039 175 2,623 _____ _____ ______ _____ Subtotal Elementary 1,095 2,104 179 3,378 Subtotal Jr. High 406 1,996 363 2,765 Subtotal Sr. High 1,409 1,039 175 2,623 ______ ______ ______ _______ Total 2,910 5,139 717 8,766 The total Negro school enrollment in 1968 was: Elementary 8,297 Junior High 2,893 Senior High 2,442 Thus, the above-mentioned schools included: Elementary 25.36% of all Negro elementary pupils Junior High 68.99% of all Negro junior high pupils Senior High 42.55% of all Negro senior high pupils Total 37.69% of all Negro pupils [11] Our Brother REHNQUIST argues in dissent that Brown v. Board of Education did not impose an \"affirmative duty to integrate\" the schools of a dual school system but was only a \"prohibition against discrimination\" \"in the sense that the assignment of a child to a particular school is not made to depend on his race . . . .\" Infra, at 258. That is the interpretation of Brown expressed 18 years ago by a three-judge court in Briggs v. Elliott, 132 F. Supp. 776, 777 (1955): \"The Constitution, in other words, does not require integration. It merely forbids discrimination.\" But Green v. County School Board, 391 U.S. 430, 437-438 (1968), rejected that interpretation insofar as Green expressly held that \"School boards ... operating state-compelled dual systems were nevertheless clearly charged [by Brown II] with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.\" Green remains the governing principle. Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971). See also Kelley v. Metropolitan County Board of Education, 317 F. Supp. 980, 984 (1970). [12] As a former School Board President who testified for the respondents put it: \"Once you change the boundary of any one school, it is affecting all the schools . . . .\" Testimony of Mrs. Lois Heath Johnson on cross-examination. App. 951a-952a.\nSimilarly, Judge Wisdom has recently stated: \"Infection at one school infects all schools. To take the most simple example, in a two school system, all blacks at one school means all or almost all whites at the other.\" United States v. Texas Education Agency, 467 F.2d 848, 888 (CA5 1972). [13] See the chart in 445 F.2d, at 1008-1009, which indicates that 31,767 pupils attended the schools affected by the resolutions. [14] Our Brother REHNQUIST argues in dissent that the District Court did take the Park Hill finding into account in addressing the question of alleged de jure segregation of the core city schools. Post, at 262. He cites the following excerpt from a footnote to the District Court's opinion of March 21, 1970, 313 F. Supp., at 74-75, n. 18: \"Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation.\" But our Brother REHNQUIST omits the rest of the footnote: \"Thus, in part I of this opinion, we discussed the building of Barrett, boundary changes and the use of mobile units as they relate to the purpose for the rescission of Resolutions 1520, 1524 and 1531.\" Obviously, the District Court was carefully limiting the comment to the consideration being given past discriminatory acts affecting the Park Hill schools in assessing the causes of current segregation of those schools. [15] In addition to these 22 schools, see 313 F. Supp., at 78, two more schools, Elyria and Smedley Elementary Schools, became less than 30% Anglo after the District Court's decision on the merits. These two schools were thus included in the list of segregated schools. 313 F. Supp., at 92. [16] 402 U.S. 1, 17-18 (1971). [17] It may be that the District Court and Court of Appeals were applying this test in holding that petitioners had failed to prove that the Board's actions \"caused\" the current condition of segregation in the core city schools. But, if so, certainly plaintiffs in a school desegregation case are not required to prove \"cause\" in the sense of \"non-attenuation.\" That is a factor which becomes relevant only after past intentional actions resulting in segregation have been established. At that stage, the burden becomes the school authorities' to show that the current segregation is in no way the result of those past segregative actions. [18] We therefore do not reach, and intimate no view upon, the merits of the holding of the District Court, premised upon its erroneous finding that the situation \"is more like de facto segregation,\" 313 F. Supp., at 73, that nevertheless, although all-out desegregation \"could not be decreed . . . the only feasible and constitutionally acceptable program . . . is a system of desegregation and integration which provides compensatory education in an integrated environment.\" Id., at 96. [1] Article IX, \u00a7 8, of the Colorado Constitution has expressly prohibited any \"classification of pupils . . . on account of race or color.\" [2] See, e. g., Swann v. Charlotte-Mecklcnburg Board of Education, 402 U.S. 1, 23 (1971): \"We do not reach . . . the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree.\" The term \"state action,\" as used herein, thus refers to actions of the appropriate public school authorities. [3] According to the 1971 Department of Health, Education, and Welfare (HEW) estimate, 43.9% of Negro pupils attended majority white schools in the South as opposed to only 27.8% who attended such schools in the North and West. Fifty-seven percent of all Negro pupils in the North and West attend schools with over 80% minority population as opposed to 32.2% who do so in the South. 118 Cong. Rec. 564 (1972). [4] The 1971 HEW Enrollment Survey dramatized the segregated character of public school systems in many nonsouthern cities. The percentage of Negro pupils which attended schools more than 80% black was 91.3 in Cleveland, Ohio; 97.8 in Compton, California; 78.1 in Dayton, Ohio; 78.6 in Detroit, Michigan; 95.7 in Gary, Indiana; 86.4 in Kansas City, Missouri; 86.6 in Los Angeles, California; 78.8 in Milwaukee, Wisconsin; 91.3 in Newark, New Jersey; 89.8 in St. Louis, Missouri. The full data from the Enrollment Survey may be found in 118 Cong. Rec. 563-566 (1972). [5] As Senator Ribicoff recognized: \"For years we have fought the battle of integration primarily in the South where the problem was severe. It was a long, arduous fight that deserved to be fought and needed to be won. \"Unfortunately, as the problem of racial isolation has moved north of the Mason-Dixon line, many northerners have bid an evasive farewell to the 100-year struggle for racial equality. Our motto seems to have been `Do to southerners what you do not want to do to yourself.' \"Good reasons have always been offered, of course, for not moving vigorously ahead in the North as well as the South. \"First, it was that the problem was worse in the South. Then the facts began to show that that was no longer true. \"We then began to hear the de facto-de jure refrain. \"Somehow residential segregation in the North was accidental or de facto and that made it better than the legally supported de jure segregation of the South. It was a hard distinction for black children in totally segregated schools in the North to understand, but it allowed us to avoid the problem.\" 118 Cong. Rec. 5455 (1972). [6] See, e. g., Bradley v. School Board, 345 F.2d 310, 316 (CA4 1965) (en banc): \"It has been held again and again . . . that the Fourteenth Amendment prohibition is not against segregation as such. . . . A state or a school district offends no constitutional requirement when it grants to all students uniformly an unrestricted freedom of choice as to schools attended, so that each pupil, in effect, assigns himself to the school he wishes to attend.\" The case was later vacated and remanded by this Court, which expressed no view on the merits of the desegregation plans submitted. 382 U.S. 103, 105 (1965). See also Bell v. School City of Gary, Ind., 324 F.2d 209 (CA7 1963); Downs v. Board of Education, 336 F.2d 988 (CA10 1964); Deal v. Cincinnati Board of Education, 369 F.2d 55 (CA6 1966). [7] For a concise history and commentary on the evolution, see generally A. Bickel, The Supreme Court and the Idea of Progress 126-130 (1970). [8] See also the companion cases in Raney v. Board of Education, 391 U.S. 443 (1968), and Monroe v. Board of Commissioners, 391 U.S. 450 (1968), neither of which involved large urban or metropolitan areas. [9] As Dr. Karl Taeuber states in his article, Residential Segregation, 213 Scientific American 12, 14 (Aug. 1965): \"No elaborate analysis is necessary to conclude from these figures that a high degree of residential segregation based on race is a universal characteristic of American cities. This segregation is found in the cities of the North and West as well as of the South; in large cities as well as small; in nonindustrial cities as well as industrial; in cities with hundreds of thousands of Negro residents as well as those with only a few thousand, and in cities that are progressive in their employment practices and civil rights policies as well as those that are not.\" In his book, Negroes in Cities (1965), Dr. Taeuber stated that residential segregation exists \"regardless of the character of local laws and policies, and regardless of the extent of other forms of segregation or discrimination.\" Id., at 36. [10] A prima facie case of constitutional violation exists when segregation is found to a substantial degree in the schools of a particular district. It is recognized, of course, that this term is relative and provides no precise standards. But circumstances, demographic and otherwise, vary from district to district and hard-and-fast rules should not be formulated. The existence of a substantial percentage of schools populated by students from one race only or predominantly so populated, should trigger the inquiry. [11] See discussion in Part III, infra, of the remedial action which is appropriate to accomplish desegregation where a court finds that a school board has failed to operate an integrated school system within its district. Plaintiffs must, however, establish the failure of a school board to operate an integrated school system before a court may order desegregative steps by way of remedy. These are two distinct steps which recognize the necessity of proving the constitutional violation before desegregative remedial action can be ordered. [12] Indeed, if one goes back far enough, it is probable that all racial segregation, wherever occurring and whether or not confined to the schools, has at some time been supported or maintained by government action. In Beckett v. School Board, 308 F. Supp. 1274, 1311-1315 (ED Va. 1969), Judge Hoffman compiled a summary of past public segregative action which included examples from a great majority of States. He concluded that \"[o]nly as to the states of Maine, New Hampshire, Vermont, Washington, Nevada, and Hawaii does it appear from this nonexhaustive research that no discriminatory laws appeared on the books at one time or another.\" Id., at 1315. [13] The author continues: \"True, the earlier the policy of segregation was abandoned the less danger there is that it continues to operate covertly, is significantly responsible for present day patterns of residential segregation, or has contributed materially to present community attitudes toward Negro schools. But there is no reason to suppose that 1954 is a universally appropriate dividing line between de jure segregation that may safely be assumed to have spent itself and that which may not. For many remedial purposes, adoption of an arbitrary but easily administrable cutoff point might not be objectionable. But in a situation such as school desegregation, where both the rights asserted and the remedial burdens imposed are of such magnitude, and where the resulting sectional discrimination is passionately resented, it is surely questionable whether such arbitrariness is either politically or morally acceptable.\" [14] See Bickel, supra, n. 7, at 119: \"If a Negro child perceives his separation as discriminatory and invidious, he is not, in a society a hundred years removed from slavery, going to make fine distinctions about the source of a particular separation.\" [15] The Court today does not require, however, a segregative intent with respect to the entire school system, and indeed holds that if such an intent is found with respect to some schools in a system, the burden\u2014normally on the plaintiffs\u2014shifts to the defendant school authorities to prove a negative: namely, that their purposes were benign, ante, at 207-209.\nThe Court has come a long way since Brown I. Starting from the unassailable de jure ground of the discriminatory constitutional and statutory provisions of some States, the new formulation\u2014still professing fidelity to the de jure doctrine\u2014is that desegregation will be ordered despite the absence of any segregative laws if: (i) segregated schools in fact exist; (ii) a court finds that they result from some action taken with segregative intent by the school board; (iii) such action relates to any \"meaningful segment\" of the school system; and (iv) the school board cannot prove that its intentions with respect to the remainder of the system were nonsegregative. [16] As one commentator has expressed it: \"If the courts are indeed prepared to inquire into motive, thorny questions will arise even if one assumes that racial motivation is capable of being proven at trial. What of the case in which one or more members of a school board, but less than a majority, are found to have acted on racial grounds? What if it appears that the school board's action was prompted by a mixture of motives, including constitutionally innocent ones that alone would have prompted the board to act? What if the members of the school board were not themselves racially inspired but wished to please their constituents, many of whom they knew to be so? If such cases are classified as unconstitutional de jure segregation, there is little point in preserving the de jure-de facto distinction at all. And it may well be that the difference between any of these situations and one in which racial motivation is altogether lacking is too insignificant, from the standpoint of both the moral culpability of the state officials and the impact upon the children involved, to support a difference in constitutional treatment.\" Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif. L. Rev. 275, 284-285 (1972). [17] See, e. g., Thompson v. School Board of Newport News, 465 F.2d 83, 87 (1972), where the Fourth Circuit en banc upheld a district court assignment plan where \"travel time, varying from a minimum of forty minutes and a maximum of one hour, each way, would be required for busing black students out of the old City and white students into the old City in order to achieve a racial balancing of the district.\" This transportation was decreed for children from the third grade up, involving children as young as eight years of age.\nIn Northcross v. Board of Education of Memphis City Schools, 466 F.2d 890, 895 (1972), the Sixth Circuit affirmed a district court assignment plan which daily transported 14,000 children with \"the maximum time to be spent on the buses by any child [being] 34 minutes . . .,\" presumably each way. But as Judge Weick noted in dissent the Sixth Circuit instructed the district judge to implement yet further desegregation orders. Plans presently under consideration by that court call for the busing of 39,085 and 61,530 children respectively, for undetermined lengths of time. Id., at 895-896. Petitioners before this Court in Potts v. Flax, No. 72-288, cert. denied, 409 U.S. 1007 (1972), contended that the implementation of the Fifth Circuit's directive in Flax v. Potts, 464 F.2d 865 (1972), would require bus rides of up to two hours and 20 minutes each day and a round trip of up to 70 miles. Pet. for Cert. 14. While respondents contended these figures represent an \"astounding inflation,\" Brief in Opposition 7, transportation of a significant magnitude seems inevitable. [18] See United States v. Texas Education Agency, 467 F.2d 848, 883 (CA5 1972) (Bell, J., concurring in an opinion in which seven other judges joined): \"In our view the remedy which the district court is required to formulate should be formulated within the entire context of the opinion in Swann v. Charlotte-Mecklenburg Board of Education. . . .\" (Emphasis added.) [19] The relevant inquiry is \"whether the costs of achieving desegregation in any given situation outweigh the legal, moral, and educational considerations favoring it. . . . It is clear . . . that the Constitution should not be held to require any transportation plan that keeps children on a bus for a substantial part of the day, consumes significant portions of funds otherwise spendable directly on education, or involves a genuine element of danger to the safety of the child.\" Comment, School Desegregation After Swann: A Theory of Government Responsibility, 39 U. Chi. L. Rev. 421, 422, 443 (1972). [20] A useful study of the historical uses and abuses of the neighborhood school concept is M. Weinberg, Race & Place (1967). [21] In fact, due to racially separate residential patterns that characterize our major urban areas it is quite unrealistic to think of achieving in many cities substantial integration throughout the school district without a degree of student transportation which would have the gravest economic and educational consequences.\nAs Professor Bickel notes: \"In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city, or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might have an appreciable impact.\" Bickel, supra, n. 7, at 132. [22] Estimates vary. Swann, 402 U. S., at 29, noted that \"[e]ighteen million of the Nation's public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country.\" Senator Ribicoff, a thoughtful student of this problem, stated that \"[t]wo-thirds of all American children today ride buses to schools for reasons unrelated to integration.\" 118 Cong. Rec. 5456 (1972). [23] Historically, distant transportation was wrongly used to promote segregation. \"Negro children were generally considered capable of traveling longer distances to school and without the aid of any vehicle. What was too far for a white child became reasonably near for a Negro child,\" Weinberg, supra, n. 20, at 87.\nThis deplorable history has led some to argue that integrative bus rides are justified as atonement for past segregative trips and that neighborhood education is now but a code word for racial segregation. But misuse of transportation in the past does not imply neighborhood schooling has no valid nonsegregative uses for the present. Nor would wrongful transportation in the past justify detrimental transportation for the children of today. [24] Some communities had transportation plans in effect at the time of court desegregation orders. See Swann, supra, at 29 n. 11; Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 34-35 (1971). Courts have used the presence or absence of existing transportation in a district as one factor in framing and implementing desegregation decrees. United States v. Watson Chapel School District, 446 F.2d 933, 937 (CA8 1971); Northcross v. Board of Education of Memphis City Schools, 444 F.2d 1179, 1182-1183 (CA6 1971); Davis v. Board of Education of North Little Rock, 328 F. Supp. 1197, 1203 (ED Ark. 1971). Where a school board is voluntarily engaged in transporting students, a district court is, of course, obligated to insure that such transportation is not undertaken with segregative effect. Where, also, voluntary transportation programs are already in progress, there may be greater justification for court-ordered transportation of students for a comparable time and distance to achieve greater integration. [25] The term \"neighborhood school\" should not be supposed to denote solely a walk-in school or one which serves children only in the surrounding blocks. The Court has noted, in a different context, that \"[t]he word `neighborhood' is quite as susceptible of variation as the word `locality.' Both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles.\" Connally v. General Construction Co., 269 U.S. 385, 395 (1926). In the school context, \"neighborhood\" refers to relative proximity, to a preference for a school nearer to, rather than more distant from, home. [26] I do not imply that the neighborhood concept must be embodied in every school system. But where a school board has chosen it, federal judges should accord it respect in framing remedial decrees. [27] Slums and Suburbs 29 (1961). [28] See n. 21, supra. [29] In Memphis, for example, which has no history of busing students, the minimum transportation plan ordered by the courts will require, in the School Board's estimate, an initial capital expenditure of $1,664,192 for buses plus an annual operating cost of $629,192. The Board estimates that a more extensive transportation program to be considered by the district court will require initial capital investments of $3,924,000 and annual operating costs of $1,783,490. The most drastic transportation plan before the district court requires estimated annual operating costs of from $2,354,220, $2,431,710, or $3,463,100 depending on the Board's transportation arrangements. Northcross v. Board of Education of Memphis City Schools, 466 F. 2d, at 898 (Weick, J., dissenting). [30] See n. 9, supra. [31] There may well be advantages in commencing the integrative experiences at an early age, as young children may be less likely than older children and adults to develop an inhibiting racial consciousness. These advantages should be considered as school boards make the various decisions with the view to achieving and preserving an integrated school system. Supra, at 226-227. But in the balancing of all relevant interests, the advantages of an early integrative experience must, and in all fairness should, be weighed against other relevant advantages and disadvantages and in light of the demographic characteristics of the particular community. [32] While greater transportation of secondary school students might be permitted, even at this level the desire of a community for racially neutral neighborhood schools should command judicial respect. It would ultimately be wisest, where there is no absence of good faith, to permit affected communities to decide this delicate issue of student transportation on their own.","meta":{"dup_signals":{"dup_doc_count":1137,"dup_dump_count":88,"dup_details":{"2024-26":2,"2024-10":3,"2017-13":3,"2015-18":45,"2015-11":38,"2015-06":44,"2014-10":28,"2013-48":34,"2013-20":15,"2023-50":1,"2023-40":1,"2023-23":1,"2023-14":2,"2023-06":2,"2022-49":2,"2022-33":1,"2022-27":2,"2022-21":3,"2022-05":1,"2021-43":2,"2021-39":2,"2021-31":1,"2021-25":2,"2021-17":2,"2021-10":4,"2021-04":2,"2020-50":1,"2020-45":2,"2020-40":2,"2020-34":1,"2020-29":3,"2020-24":3,"2020-16":4,"2020-10":2,"2020-05":2,"2019-51":1,"2019-47":4,"2019-43":1,"2019-39":1,"2019-35":3,"2019-30":2,"2019-26":1,"2019-22":4,"2019-18":3,"2019-09":1,"2018-51":2,"2018-47":1,"2018-43":3,"2018-34":2,"2018-30":1,"2018-26":3,"2018-17":3,"2018-13":1,"2018-09":1,"2018-05":3,"2017-47":2,"2017-43":8,"2017-39":12,"2017-34":3,"2017-30":2,"2017-26":3,"2017-22":16,"2017-17":4,"2017-09":40,"2017-04":4,"2016-50":5,"2016-44":23,"2016-40":21,"2016-36":22,"2016-30":16,"2016-26":1,"2016-22":2,"2016-18":2,"2016-07":37,"2015-48":33,"2015-40":24,"2015-35":39,"2015-32":37,"2015-27":25,"2015-22":20,"2015-14":40,"2014-52":40,"2014-49":48,"2014-42":71,"2014-41":58,"2014-35":54,"2014-23":63,"2014-15":58}}},"subset":"freelaw"}
{"text":"403 U.S. 713 (1971) NEW YORK TIMES CO. v. UNITED STATES. No. 1873. Supreme Court of United States. Argued June 26, 1971 Decided June 30, 1971[*] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. Alexander M. Bickel argued the cause for petitioner in No. 1873. With him on the brief were William E. Hegarty and Lawrence J. McKay. Solicitor General Griswold argued the cause for the United States in both cases. With him on the brief were Assistant Attorney General Mardian and Daniel M. Friedman. William R. Glendon argued the cause for respondents in No. 1885. With him on the brief were Roger A. Clark, Anthony F. Essaye, Leo P. Larkin, Jr., and Stanley Godofsky. Briefs of amici curiae were filed by Bob Eckhardt and Thomas I. Emerson for Twenty-Seven Members of Congress; by Norman Dorsen, Melvin L. Wulf, Burt Neuborne, Bruce J. Ennis, Osmond K. Fraenkel, and Marvin M. Karpatkin for the American Civil Liberties Union; and by Victor Rabinowitz for the National Emergency Civil Liberties Committee. *714 PER CURIAM. We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled \"History of U. S. Decision-Making Process on Viet Nam Policy.\" Post, pp. 942, 943. \"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.\" Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government \"thus carries a heavy burden of showing justification for the imposition of such a restraint.\" Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree. The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith. So ordered. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring. I adhere to the view that the Government's case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe *715 that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment. Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country. In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms.[1] They especially feared that the *716 new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: \"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.\"[2] (Emphasis added.) The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men *717 that they were, wrote in language they earnestly believed could never be misunderstood: \"Congress shall make no law . . . abridging the freedom . . . of the press . . . .\" Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated: \"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only *718 say, Mr. Justice, that to me it is equally obvious that `no law' does not mean `no law', and I would seek to persuade the Court that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.\"[3] And the Government argues in its brief that in spite of the First Amendment, \"[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.\"[4] In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of \"national security.\" The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to \"make\" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.[5] See concurring opinion of MR. JUSTICE DOUGLAS, *719 post, at 721-722. To find that the President has \"inherent power\" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make \"secure.\" No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time. The word \"security\" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes\u2014great man and great Chief Justice that he was\u2014when the Court held a man could not be punished for attending a meeting run by Communists. \"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free *720 assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.\"[6] MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring. While I join the opinion of the Court I believe it necessary to express my views more fully. It should be noted at the outset that the First Amendment provides that \"Congress shall make no law . . . abridging the freedom of speech, or of the press.\" That leaves, in my view, no room for governmental restraint on the press.[1] There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S. C. \u00a7 793 (e) provides that \"[w]hoever having unauthorized possession of, access to, or control over any document, writing . . . or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined *721 not more than $10,000 or imprisoned not more than ten years, or both.\" The Government suggests that the word \"communicates\" is broad enough to encompass publication. There are eight sections in the chapter on espionage and censorship, \u00a7\u00a7 792-799. In three of those eight \"publish\" is specifically mentioned: \u00a7 794 (b) applies to \"Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates . . . [the disposition of armed forces].\" Section 797 applies to whoever \"reproduces, publishes, sells, or gives away\" photographs of defense installations. Section 798 relating to cryptography applies to whoever: \"communicates, furnishes, transmits, or otherwise makes available . . . or publishes\" the described material.[2] (Emphasis added.) Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act. The other evidence that \u00a7 793 does not apply to the press is a rejected version of \u00a7 793. That version read: \"During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the *722 enemy.\" 55 Cong. Rec. 1763. During the debates in the Senate the First Amendment was specifically cited and that provision was defeated. 55 Cong. Rec. 2167. Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S. C. \u00a7 793 states in \u00a7 1 (b) that: \"Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.\" 64 Stat. 987. Thus Congress has been faithful to the command of the First Amendment in this area. So any power that the Government possesses must come from its \"inherent power.\" The power to wage war is \"the power to wage war successfully.\" See Hirabayashi v. United States, 320 U.S. 81, 93. But the war power stems from a declaration of war. The Constitution by Art. I, \u00a7 8, gives Congress, not the President, power \"[t]o declare War.\" Nowhere are presidential wars authorized. We need not decide therefore what leveling effect the war power of Congress might have. These disclosures[3] may have a serious impact. But that is no basis for sanctioning a previous restraint on *723 the press. As stated by Chief Justice Hughes in Near v. Minnesota, 283 U.S. 697, 719-720: \"While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.\" As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, \"[a]ny prior restraint on expression comes to this Court with a `heavy presumption' against its constitutional validity.\" The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which in this case is alleged to be national security. Near v. Minnesota, 283 U.S. 697, repudiated that expansive doctrine in no uncertain terms. The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression *724 of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress. Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be \"uninhibited, robust, and wide-open\" debate. New York Times Co. v. Sullivan, 376 U.S. 254, 269-270. I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay of the Court of Appeals in the Times case and direct that it affirm the District Court. The stays in these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment as interpreted in Near v. Minnesota. MR. JUSTICE BRENNAN, concurring.\nI I write separately in these cases only to emphasize what should be apparent: that our judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining *725 orders to block the publication of material sought to be suppressed by the Government. So far as I can determine, never before has the United States sought to enjoin a newspaper from publishing information in its possession. The relative novelty of the questions presented, the necessary haste with which decisions were reached, the magnitude of the interests asserted, and the fact that all the parties have concentrated their arguments upon the question whether permanent restraints were proper may have justified at least some of the restraints heretofore imposed in these cases. Certainly it is difficult to fault the several courts below for seeking to assure that the issues here involved were preserved for ultimate review by this Court. But even if it be assumed that some of the interim restraints were proper in the two cases before us, that assumption has no bearing upon the propriety of similar judicial action in the future. To begin with, there has now been ample time for reflection and judgment; whatever values there may be in the preservation of novel questions for appellate review may not support any restraints in the future. More important, the First Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases.\nII The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoined \"could,\" or \"might,\" or \"may\" prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences *726 may result.[*] Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation \"is at war,\" Schenck v. United States, 249 U.S. 47, 52 (1919), during which times \"[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.\" Near v. Minnesota, 283 U.S. 697, 716 (1931). Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature. \"[T]he chief purpose of [the First Amendment's] guaranty [is] to prevent previous restraints upon publication.\" Near v. Minnesota, supra, at 713. Thus, only governmental allegation and proof that publication must inevitably, directly, *727 and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient: for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And therefore, every restraint issued in this case, whatever its form, has violated the First Amendment \u2014and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that no injunction may issue. MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring. In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative[1] and Judicial[2] branches, has been pressed to the very hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is that a *728 President of the United States possesses vastly greater constitutional independence in these two vital areas of power than does, say, a prime minister of a country with a parliamentary from of government. In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry\u2014in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people. Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident. I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is.[3] If the Constitution gives the Executive *729 a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained. But be that as it may, it is clear to me that it is the constitutional duty of the Executive\u2014 as a matter of sovereign prerogative and not as a matter of law as the courts know law\u2014through the promulgation and enforcement of executive regulations, to protect *730 the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense. This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in this field, the courts would likewise have the duty to decide the constitutionality of such a law as well as its applicability to the facts proved. But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court. MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring. I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints *731 enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations.[1] Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these. *732 The Government's position is simply stated: The responsibility of the Executive for the conduct of the foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction against publication of a newspaper story whenever he can convince a court that the information to be revealed threatens \"grave and irreparable\" injury to the public interest;[2] and the injunction should issue whether or not the material to be published is classified, whether or not publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of the circumstances by which the newspaper came into possession of the information. At least in the absence of legislation by Congress, based on its own investigations and findings, I am quite unable to agree that the inherent powers of the Executive and the courts reach so far as to authorize remedies having such sweeping potential for inhibiting publications by the press. Much of the difficulty inheres in the \"grave and irreparable danger\" standard suggested by the United States. If the United States were to have judgment under such a standard in these cases, our decision would be of little guidance to other courts in other cases, for the material at issue here would not be available from the Court's opinion or from public records, nor would it be published by the press. Indeed, even today where we hold that the United States has not met its burden, the material remains sealed in court records and it is *733 properly not discussed in today's opinions. Moreover, because the material poses substantial dangers to national interests and because of the hazards of criminal sanctions, a responsible press may choose never to publish the more sensitive materials. To sustain the Government in these cases would start the courts down a long and hazardous road that I am not willing to travel, at least without congressional guidance and direction. It is not easy to reject the proposition urged by the United States and to deny relief on its good-faith claims in these cases that publication will work serious damage to the country. But that discomfiture is considerably dispelled by the infrequency of prior-restraint cases. Normally, publication will occur and the damage be done before the Government has either opportunity or grounds for suppression. So here, publication has already begun and a substantial part of the threatened damage has already occurred. The fact of a massive breakdown in security is known, access to the documents by many unauthorized people is undeniable, and the efficacy of equitable relief against these or other newspapers to avert anticipated damage is doubtful at best. What is more, terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way. When the Espionage Act was under consideration in *734 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense.[3] Congress at that time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to \"filter out the news to the people through some man.\" 55 Cong. Rec. 2008 (remarks of Sen. Ashurst). However, these same members of congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper \"should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing.\" Id., at 2009.[4] *735 The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797[5] makes it a crime to publish certain photographs or drawings of military installations. Section 798,[6] also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems *736 or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations.[7] If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they *737 publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint. The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense. Section 793 (e)[8] makes it a criminal act for any unauthorized possessor of a document \"relating to the national defense\" either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950 because pre-existing law provided no *738 penalty for the unauthorized possessor unless demand for the documents was made.[9] \"The dangers surrounding the unauthorized possession of such items are selfevident, *739 and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand.\" S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the unpublished documents have been demanded by the United States and their import has been made known at least to counsel for the newspapers involved. In Gorin v. United States, 312 U.S. 19, 28 (1941), the words \"national defense\" as used in a predecessor of \u00a7 793 were held by a unanimous Court to have \"a well understood connotation\"\u2014 a \"generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness\"\u2014and to be \"sufficiently definite to apprise the public of prohibited activities\" *740 and to be consonant with due process. 312 U.S., at 28. Also, as construed by the Court in Gorin, information \"connected with the national defense\" is obviously not limited to that threatening \"grave and irreparable\" injury to the United States.[10] It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-586 (1952); see also id., at 593-628 (Frankfurter, J., concurring). It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings. MR. JUSTICE MARSHALL, concurring. The Government contends that the only issue in these cases is whether in a suit by the United States, \"the First Amendment bars a court from prohibiting a newspaper *741 from publishing material whose disclosure would pose a `grave and immediate danger to the security of the United States.' \" Brief for the United States 7. With all due respect, I believe the ultimate issue in these cases is even more basic than the one posed by the Solicitor General. The issue is whether this Court or the Congress has the power to make law. In these cases there is no problem concerning the President's power to classify information as \"secret\" or \"top secret.\" Congress has specifically recognized Presidential authority, which has been formally exercised in Exec. Order 10501 (1953), to classify documents and information. See, e. g., 18 U.S. C. \u00a7 798; 50 U.S. C. \u00a7 783.[1] Nor is there any issue here regarding the President's power as Chief Executive and Commander in Chief to protect national security by disciplining employees who disclose information and by taking precautions to prevent leaks. The problem here is whether in these particular cases the Executive Branch has authority to invoke the equity jurisdiction of the courts to protect what it believes to be the national interest. See In re Debs, 158 U.S. 564, 584 (1895). The Government argues that in addition to the inherent power of any government to protect itself, the President's power to conduct foreign affairs and his position as Commander in Chief give him authority to impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the military affairs of the country. Of course, it is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander in Chief. Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103 (1948); Hirabayashi v. United States, 320 U.S. 81, 93 (1943); United States v. Curtiss-Wright *742 Corp., 299 U.S. 304 (1936).[2] And in some situations it may be that under whatever inherent powers the Government may have, as well as the implicit authority derived from the President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis for the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material damaging to \"national security,\" however that term may be defined. It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit. There would be a similar damage to the basic concept of these co-equal branches of Government if when the Executive Branch has adequate authority granted by Congress to protect \"national security\" it can choose instead to invoke the contempt power of a court to enjoin the threatened conduct. The Constitution provides that Congress shall make laws, the President execute laws, and courts interpret laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). It did not provide for government by injunction in which the courts and the Executive Branch can \"make law\" without regard to the action of Congress. It may be more convenient for the Executive Branch if it need only convince a judge to prohibit conduct rather than ask the Congress to pass a law, and it may be more convenient to enforce a contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be considered politically wise to get a court to share the responsibility for arresting those who the Executive Branch has probable cause to believe are violating the law. But convenience and political considerations of the *743 moment do not justify a basic departure from the principles of our system of government. In these cases we are not faced with a situation where Congress has failed to provide the Executive with broad power to protect the Nation from disclosure of damaging state secrets. Congress has on several occasions given extensive consideration to the problem of protecting the military and strategic secrets of the United States. This consideration has resulted in the enactment of statutes making it a crime to receive, disclose, communicate, withhold, and publish certain documents, photographs, instruments, appliances, and information. The bulk of these statutes is found in chapter 37 of U. S. C., Title 18, entitled Espionage and Censorship.[3] In that chapter, *744 Congress has provided penalties ranging from a $10,000 fine to death for violating the various statutes. Thus it would seem that in order for this Court to issue an injunction it would require a showing that such an injunction would enhance the already existing power of the Government to act. See Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d 439 (1938). It is a traditional axiom of equity that a court of equity will not do a useless thing just as it is a traditional axiom that equity will not enjoin the commission of a crime. See Z. Chafee & E. Re, Equity 935-954 (5th ed. 1967); 1 H. Joyce, Injunctions \u00a7\u00a7 58-60a (1909). Here there has been no attempt to make such a showing. The Solicitor General does not even mention in his brief whether the Government considers that there is probable cause to believe a crime has been committed or whether there is a conspiracy to commit future crimes. If the Government had attempted to show that there was no effective remedy under traditional criminal law, it would have had to show that there is no arguably applicable statute. Of course, at this stage this Court could not and cannot determine whether there has been a violation of a particular statute or decide the constitutionality of any statute. Whether a good-faith prosecution could have been instituted under any statute could, however, be determined. *745 At least one of the many statutes in this area seems relevant to these cases. Congress has provided in 18 U.S. C. \u00a7 793 (e) that whoever \"having unauthorized possession of, access to, or control over any document, writing, code book, signal book . . . or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits . . . the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it . . . [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.\" Congress has also made it a crime to conspire to commit any of the offenses listed in 18 U.S. C. \u00a7 793 (e). It is true that Judge Gurfein found that Congress had not made it a crime to publish the items and material specified in \u00a7 793 (e). He found that the words \"communicates, delivers, transmits . . .\" did not refer to publication of newspaper stories. And that view has some support in the legislative history and conforms with the past practice of using the statute only to prosecute those charged with ordinary espionage. But see 103 Cong. Rec. 10449 (remarks of Sen. Humphrey). Judge Gurfein's view of the statute is not, however, the only plausible construction that could be given. See my Brother WHITE'S concurring opinion. Even if it is determined that the Government could not in good faith bring criminal prosecutions against the New York Times and the Washington Post, it is clear that Congress has specifically rejected passing legislation that would have clearly given the President the power he seeks here and made the current activity of the newspapers unlawful. When Congress specifically declines to make conduct unlawful it is not for this Court *746 to redecide those issues\u2014to overrule Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). On at least two occasions Congress has refused to enact legislation that would have made the conduct engaged in here unlawful and given the President the power that he seeks in this case. In 1917 during the debate over the original Espionage Act, still the basic provisions of \u00a7 793, Congress rejected a proposal to give the President in time of war or threat of war authority to directly prohibit by proclamation the publication of information relating to national defense that might be useful to the enemy. The proposal provided that: \"During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy. Whoever violates any such prohibition shall be punished by a fine of not more than $10,000 or by imprisonment for not more than 10 years, or both: Provided, That nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government or its representatives or the publication of the same.\" 55 Cong. Rec. 1763. Congress rejected this proposal after war against Germany had been declared even though many believed that there was a grave national emergency and that the threat of security leaks and espionage was serious. The Executive Branch has not gone to Congress and requested that the decision to provide such power be reconsidered. Instead, *747 the Executive Branch comes to this Court and asks that it be granted the power Congress refused to give. In 1957 the United States Commission on Government Security found that \"[a]irplane journals, scientific periodicals, and even the daily newspaper have featured articles containing information and other data which should have been deleted in whole or in part for security reasons.\" In response to this problem the Commission proposed that \"Congress enact legislation making it a crime for any person willfully to disclose without proper authorization, for any purpose whatever, information classified `secret' or `top secret,' knowing, or having reasonable grounds to believe, such information to have been so classified.\" Report of Commission on Government Security 619-620 (1957). After substantial floor discussion on the proposal, it was rejected. See 103 Cong. Rec. 10447-10450. If the proposal that Sen. Cotton championed on the floor had been enacted, the publication of the documents involved here would certainly have been a crime. Congress refused, however, to make it a crime. The Government is here asking this Court to remake that decision. This Court has no such power. Either the Government has the power under statutory grant to use traditional criminal law to protect the country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that Congress has specifically refused to grant the authority the Government seeks from this Court. In either case this Court does not have authority to grant the requested relief. It is not for this Court to fling itself into every breach perceived by some Government official nor is it for this Court to take on itself the burden of enacting law, especially a law that Congress has refused to pass. I believe that the judgment of the United States Court of Appeals for the District of Columbia Circuit should *748 be affirmed and the judgment of the United States Court of Appeals for the Second Circuit should be reversed insofar as it remands the case for further hearings. MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting. These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States, 193 U.S. 197, 400-401 (1904): \"Great cases like hard cases make bad law. For great cases are called great, not by reason of their *753 real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.\" With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases. Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia Circuit rendered judgment on June 23. The New York Times' petition for certiorari, its motion for accelerated consideration thereof, and its application for interim relief were filed in this Court on June 24 at about 11 a. m. The application of the United States for interim relief in the Post case was also filed here on June 24 at about 7:15 p. m. This Court's order setting a hearing before us on June 26 at 11 a. m., a course which I joined only to avoid the possibility of even more peremptory action by the Court, was issued less than 24 hours before. The record in the Post case was filed with the Clerk shortly before 1 p. m. on June 25; the record in the Times case did not arrive until 7 or 8 o'clock that same night. The briefs of the parties were received less than two hours before argument on June 26. This frenzied train of events took place in the name of the presumption against prior restraints created by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in these litigations should have led the Court to shun such a precipitate timetable. In order to decide the merits of these cases properly, some or all of the following questions should have been faced: 1. Whether the Attorney General is authorized to bring these suits in the name of the United States. Compare *754 In re Debs, 158 U.S. 564 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). This question involves as well the construction and validity of a singularly opaque statute\u2014the Espionage Act, 18 U.S. C. \u00a7 793 (e). 2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security. See Near v. Minnesota, 283 U.S. 697, 716 (1931) (dictum). 3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that regardless of the contents of the documents harm enough results simply from the demonstration of such a breach of secrecy. 4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the national security. 5. What weight should be given to the opinion of high officers in the Executive Branch of the Government with respect to questions 3 and 4. 6. Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the Government's possession and that the newspapers received them with knowledge that they had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129 U. S. App. D. C. 74, 390 F.2d 489 (1967, amended 1968). 7. Whether the threatened harm to the national security or the Government's possessory interest in the documents justifies the issuance of an injunction against publication in light of\u2014 a. The strong First Amendment policy against prior restraints on publication; *755 b. The doctrine against enjoining conduct in violation of criminal statutes; and c. The extent to which the materials at issue have apparently already been otherwise disseminated. These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision are enormous. The time which has been available to us, to the lower courts,[*] and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is a reflection on the stability of the judicial process that these great issues\u2014 as important as any that have arisen during my time on the Court\u2014should have been decided under the pressures engendered by the torrent of publicity that has attended these litigations from their inception. Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court. Within the severe limitations imposed by the time constraints under which I have been required to operate, I can only state my reasons in telescoped form, even though in different circumstances I would have felt constrained to deal with the cases in the fuller sweep indicated above. It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in the Times litigation to observe that its order must rest on the conclusion that because of the time elements the Government had not been given an adequate opportunity to present its case *756 to the District Court. At the least this conclusion was not an abuse of discretion. In the Post litigation the Government had more time to prepare; this was apparently the basis for the refusal of the Court of Appeals for the District of Columbia Circuit on rehearing to conform its judgment to that of the Second Circuit. But I think there is another and more fundamental reason why this judgment cannot stand\u2014a reason which also furnishes an additional ground for not reinstating the judgment of the District Court in the Times litigation, set aside by the Court of Appeals. It is plain to me that the scope of the judicial function in passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very narrowly restricted. This view is, I think, dictated by the concept of separation of powers upon which our constitutional system rests. In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then a member of that body, stated: \"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.\" 10 Annals of Cong. 613 (1800). From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this description of the scope of executive power. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 319-321 (1936), collecting authorities. From this constitutional primacy in the field of foreign affairs, it seems to me that certain conclusions necessarily follow. Some of these were stated concisely by President Washington, declining the request of the House of Representatives for the papers leading up to the negotiation of the Jay Treaty: \"The nature of foreign negotiations requires caution, and their success must often depend on secrecy; *757 and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers.\" 1 J. Richardson, Messages and Papers of the Presidents 194-195 (1896). The power to evaluate the \"pernicious influence\" of premature disclosure is not, however, lodged in the Executive alone. I agree that, in performance of its duty to protect the values of the First Amendment against political pressures, the judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President's foreign relations power. Constitutional considerations forbid \"a complete abandonment of judicial control.\" Cf. United States v. Reynolds, 345 U.S. 1, 8 (1953). Moreover, the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department concerned\u2014here the Secretary of State or the Secretary of Defense\u2014after actual personal consideration by that officer. This safeguard is required in the analogous area of executive claims of privilege for secrets of state. See id., at 8 and n. 20; Duncan v. Cammell, Laird & Co., [1942] A. C. 624, 638 (House of Lords). But in my judgment the judiciary may not properly go beyond these two inquiries and redetermine for itself the probable impact of disclosure on the national security. \"[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions *758 are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.\" Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (Jackson, J.). Even if there is some room for the judiciary to override the executive determination, it is plain that the scope of review must be exceedingly narrow. I can see no indication in the opinions of either the District Court or the Court of Appeals in the Post litigation that the conclusions of the Executive were given even the deference owing to an administrative agency, much less that owing to a co-equal branch of the Government operating within the field of its constitutional prerogative. Accordingly, I would vacate the judgment of the Court of Appeals for the District of Columbia Circuit on this ground and remand the case for further proceedings in the District Court. Before the commencement of such further proceedings, due opportunity should be afforded the Government for procuring from the Secretary of State or the Secretary of Defense or both an expression of their views on the issue of national security. The ensuing review by the District Court should be in accordance with the views expressed in this opinion. And for the reasons stated above I would affirm the judgment of the Court of Appeals for the Second Circuit. Pending further hearings in each case conducted under the appropriate ground rules, I would continue the *759 restraints on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to the point of preventing courts from maintaining the status quo long enough to act responsibly in matters of such national importance as those involved here. MR. JUSTICE BLACKMUN, dissenting. I join MR. JUSTICE HARLAN in his dissent. I also am in substantial accord with much that MR. JUSTICE WHITE says, by way of admonition, in the latter part of his opinion. At this point the focus is on only the comparatively few documents specified by the Government as critical. So far as the other material\u2014vast in amount\u2014is concerned, let it be published and published forthwith if the newspapers, once the strain is gone and the sensationalism is eased, still feel the urge so to do. But we are concerned here with the few documents specified from the 47 volumes. Almost 70 years ago Mr. Justice Holmes, dissenting in a celebrated case, observed: \"Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure . . . .\" Northern Securities Co. v. United States, 193 U.S. 197, 400-401 (1904). The present cases, if not great, are at least unusual in their posture and implications, and the Holmes observation certainly has pertinent application. The New York Times clandestinely devoted a period of three months to examining the 47 volumes that came into its unauthorized possession. Once it had begun publication *760 of material from those volumes, the New York case now before us emerged. It immediately assumed, and ever since has maintained, a frenetic pace and character. Seemingly, once publication started, the material could not be made public fast enough. Seemingly, from then on, every deferral or delay, by restraint or otherwise, was abhorrent and was to be deemed violative of the First Amendment and of the public's \"right immediately to know.\" Yet that newspaper stood before us at oral argument and professed criticism of the Government for not lodging its protest earlier than by a Monday telegram following the initial Sunday publication. The District of Columbia case is much the same. Two federal district courts, two United States courts of appeals, and this Court\u2014within a period of less than three weeks from inception until today\u2014have been pressed into hurried decision of profound constitutional issues on inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should characterize the American judicial process. There has been much writing about the law and little knowledge and less digestion of the facts. In the New York case the judges, both trial and appellate, had not yet examined the basic material when the case was brought here. In the District of Columbia case, little more was done, and what was accomplished in this respect was only on required remand, with the Washington Post, on the excuse that it was trying to protect its source of information, initially refusing to reveal what material it actually possessed, and with the District Court forced to make assumptions as to that possession. With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a lawsuit of this magnitude and asserted importance. It is not the way for federal courts to adjudicate, and to be required to adjudicate, issues that allegedly concern the Nation's *761 vital welfare. The country would be none the worse off were the cases tried quickly, to be sure, but in the customary and properly deliberative manner. The most recent of the material, it is said, dates no later than 1968, already about three years ago, and the Times itself took three months to formulate its plan of procedure and, thus, deprived its public for that period. The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. First Amendment absolutism has never commanded a majority of this Court. See, for example, Near v. Minnesota, 283 U.S. 697, 708 (1931), and Schenck v. United States, 249 U.S. 47, 52 (1919). What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what those standards should be. But even the newspapers concede that there are situations where restraint is in order and is constitutional. Mr. Justice Holmes gave us a suggestion when he said in Schenck, \"It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.\" 249 U.S., at 52. I therefore would remand these cases to be developed expeditiously, of course, but on a schedule permitting the *762 orderly presentation of evidence from both sides, with the use of discovery, if necessary, as authorized by the rules, and with the preparation of briefs, oral argument, and court opinions of a quality better than has been seen to this point. In making this last statement, I criticize no lawyer or judge. I know from past personal experience the agony of time pressure in the preparation of litigation. But these cases and the issues involved and the courts, including this one, deserve better than has been produced thus far. It may well be that if these cases were allowed to develop as they should be developed, and to be tried as lawyers should try them and as courts should hear them, free of pressure and panic and sensationalism, other light would be shed on the situation and contrary considerations, for me, might prevail. But that is not the present posture of the litigation. The Court, however, decides the cases today the other way. I therefore add one final comment. I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia case, after a review of only the affidavits before his court (the basic papers had not then been made available by either party), concluded that there were a number of examples of documents that, if in the possession of the Post, and if published, \"could clearly result in great harm to the nation,\" and he defined \"harm\" to mean \"the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate . . . .\" I, for one, have now been able to give at least some cursory study not only to the affidavits, but to the material itself. I regret to say that from this examination I fear that Judge Wilkey's statements have possible foundation. I therefore share *763 his concern. I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom \"the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,\" to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests. MR. CHIEF JUSTICE BURGER, dissenting. So clear are the constitutional limitations on prior restraint against expression, that from the time of Near v. Minnesota, 283 U.S. 697 (1931), until recently in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), we have had little occasion to be concerned with cases involving prior restraints against news reporting on matters of public interest. There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. Adherence to this basic constitutional principle, however, does not make these cases simple. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances\u2014a view I respect, but reject\u2014can find such cases as these to be simple or easy. These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member of this Court knows all the facts. Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act? I suggest we are in this posture because these cases have been conducted in unseemly haste. MR. JUSTICE HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been processed and I need not restate them. The prompt *749 setting of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste. Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue. The newspapers make a derivative claim under the First Amendment; they denominate this right as the public \"right to know\"; by implication, the Times asserts a sole trusteeship of that right by virtue of its journalistic \"scoop.\" The right is asserted as an absolute. Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout \"fire\" in a crowded theater if there was no fire. There are other exceptions, some of which Chief Justice Hughes mentioned by way of example in Near v. Minnesota. There are no doubt other exceptions no one has had occasion to describe or discuss. Conceivably such exceptions may be lurking in these cases and would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this importance should be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication.[1] *750 It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication. During all of this time, the Times, presumably in its capacity as trustee of the public's \"right to know,\" has held up publication for purposes it considered proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material would inevitably take time and the writing of good news stories takes time. But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the alleged \"right to know\" has somehow and suddenly become a right that must be vindicated instanter. Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach\u2014 one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press\u2014 the newspapers and Government might well have narrowed *751 the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary. To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought\u2014perhaps naively\u2014was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues. If the action of the judges up to now has been correct, that result is sheer happenstance.[2] Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District Court before it had made a complete record pursuant to the mandate of the Court of Appeals for the Second Circuit. The consequence of all this melancholy series of events is that we literally do not know what we are acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude without an adequate record, and surely without time for adequate treatment either in the prior proceedings or in this Court. It is interesting to note that counsel on both sides, in oral argument before this Court, were frequently unable to respond to questions on factual points. Not surprisingly they pointed out that they had been working literally \"around the clock\" and simply were unable to review the documents that give rise to these cases and *752 were not familiar with them. This Court is in no better posture. I agree generally with MR. JUSTICE HARLAN and MR. JUSTICE BLACKMUN but I am not prepared to reach the merits.[3] I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the trial aborted by our grant of certiorari, meanwhile preserving the status quo in the Post case. I would direct that the District Court on remand give priority to the Times case to the exclusion of all other business of that court but I would not set arbitrary deadlines. I should add that I am in general agreement with much of what MR. JUSTICE WHITE has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense. We all crave speedier judicial processes but when judges are pressured as in these cases the result is a parody of the judicial function. NOTES [*] Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to the United States Court of Appeals for the District of Columbia Circuit. [1] In introducing the Bill of Rights in the House of Representatives, Madison said: \"[B]ut I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provisions against the encroachments on particular rights . . . .\" 1 Annals of Cong. 433. Congressman Goodhue added: \"[I]t is the wish of many of our constituents, that something should be added to the Constitution, to secure in a stronger manner their liberties from the inroads of power.\" Id., at 426. [2] The other parts were: \"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.\" \"The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.\" 1 Annals of Cong. 434. [3] Tr. of Oral Arg. 76. [4] Brief for the United States 13-14. [5] Compare the views of the Solicitor General with those of James Madison, the author of the First Amendment. When speaking of the Bill of Rights in the House of Representatives, Madison said: \"If they [the first ten amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.\" 1 Annals of Cong. 439. [6] De Jonge v. Oregon, 299 U.S. 353, 365. [1] See Beauharnais v. Illinois, 343 U.S. 250, 267 (dissenting opinion of MR. JUSTICE BLACK), 284 (my dissenting opinion); Roth v. United States, 354 U.S. 476, 508 (my dissenting opinion which MR. JUSTICE BLACK joined); Yates v. United States, 354 U.S. 298, 339 (separate opinion of MR. JUSTICE BLACK which I joined); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (concurring opinion of MR. JUSTICE BLACK which I joined); Garrison v. Louisiana, 379 U.S. 64, 80 (my concurring opinion which MR. JUSTICE BLACK joined). [2] These documents contain data concerning the communications system of the United States, the publication of which is made a crime. But the criminal sanction is not urged by the United States as the basis of equity power. [3] There are numerous sets of this material in existence and they apparently are not under any controlled custody. Moreover, the President has sent a set to the Congress. We start then with a case where there already is rather wide distribution of the material that is destined for publicity, not secrecy. I have gone over the material listed in the in camera brief of the United States. It is all history, not future events. None of it is more recent than 1968. [*] Freedman v. Maryland, 380 U.S. 51 (1965), and similar cases regarding temporary restraints of allegedly obscene materials are not in point. For those cases rest upon the proposition that \"obscenity is not protected by the freedoms of speech and press.\" Roth v. United States, 354 U.S. 476, 481 (1957). Here there is no question but that the material sought to be suppressed is within the protection of the First Amendment; the only question is whether, notwithstanding that fact, its publication may be enjoined for a time because of the presence of an overwhelming national interest. Similarly, copyright cases have no pertinence here: the Government is not asserting an interest in the particular form of words chosen in the documents, but is seeking to suppress the ideas expressed therein. And the copyright laws, of course, protect only the form of expression and not the ideas expressed. [1] The President's power to make treaties and to appoint ambassadors is, of course, limited by the requirement of Art. II, \u00a7 2, of the Constitution that he obtain the advice and consent of the Senate. Article I, \u00a7 8, empowers Congress to \"raise and support Armies,\" and \"provide and maintain a Navy.\" And, of course, Congress alone can declare war. This power was last exercised almost 30 years ago at the inception of World War II. Since the end of that war in 1945, the Armed Forces of the United States have suffered approximately half a million casualties in various parts of the world. [2] See Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103; Hirabayashi v. United States, 320 U.S. 81; United States v. Curtiss-Wright Corp., 299 U.S. 304; cf. Mora v. McNamara, 128 U. S. App. D. C. 297, 387 F.2d 862, cert. denied, 389 U.S. 934. [3] \"It is quite apparent that if, in the maintenance of our international relations, embarrassment\u2014perhaps serious embarrassment\u2014 is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty\u2014a refusal the wisdom of which was recognized by the House itself and has never since been doubted. . . .\" United States v. Curtiss-Wright Corp., 299 U.S. 304, 320. [1] The Congress has authorized a strain of prior restraints against private parties in certain instances. The National Labor Relations Board routinely issues cease-and-desist orders against employers who it finds have threatened or coerced employees in the exercise of protected rights. See 29 U.S. C. \u00a7 160 (c). Similarly, the Federal Trade Commission is empowered to impose cease-and-desist orders against unfair methods of competition. 15 U.S. C. \u00a7 45 (b). Such orders can, and quite often do, restrict what may be spoken or written under certain circumstances. See, e. g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620 (1969). Article I, \u00a7 8, of the Constitution authorizes Congress to secure the \"exclusive right\" of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another. See Westermann Co. v. Dispatch Co., 249 U.S. 100 (1919). Newspapers do themselves rely from time to time on the copyright as a means of protecting their accounts of important events. However, those enjoined under the statutes relating to the National Labor Relations Board and the Federal Trade Commission are private parties, not the press; and when the press is enjoined under the copyright laws the complainant is a private copyright holder enforcing a private right. These situations are quite distinct from the Government's request for an injunction against publishing information about the affairs of government, a request admittedly not based on any statute. [2] The \"grave and irreparable danger\" standard is that asserted by the Government in this Court. In remanding to Judge Gurfein for further hearings in the Times litigation, five members of the Court of Appeals for the Second Circuit directed him to determine whether disclosure of certain items specified with particularity by the Government would \"pose such grave and immediate danger to the security of the United States as to warrant their publication being enjoined.\" [3] \"Whoever, in time of war, in violation of reasonable regulations to be prescribed by the President, which he is hereby authorized to make and promulgate, shall publish any information with respect to the movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense calculated to be useful to the enemy, shall be punished by a fine . . . or by imprisonment . . . .\" 55 Cong. Rec. 2100. [4] Senator Ashurst also urged that \" `freedom of the press' means freedom from the restraints of a censor, means the absolute liberty and right to publish whatever you wish; but you take your chances of punishment in the courts of your country for the violation of the laws of libel, slander, and treason.\" 55 Cong. Rec. 2005. [5] Title 18 U.S. C. \u00a7 797 provides: \"On and after thirty days from the date upon which the President defines any vital military or naval installation or equipment as being within the category contemplated under section 795 of this title, whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing, map, or graphical representation of the vital military or naval installations or equipment so defined, without first obtaining permission of the commanding officer of the military or naval post, camp, or station concerned, or higher authority, unless such photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon that it has been censored by the proper military or naval authority, shall be fined not more than $1,000 or imprisoned not more than one year, or both.\" [6] In relevant part 18 U.S. C. \u00a7 798 provides: \"(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information\u2014 \"(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or \"(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or \"(3) concerning the communication intelligence activities of the United States or any foreign government; or \"(4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes\u2014 \"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.\" [7] The purport of 18 U.S. C. \u00a7 798 is clear. Both the House and Senate Reports on the bill, in identical terms, speak of furthering the security of the United States by preventing disclosure of information concerning the cryptographic systems and the communication intelligence systems of the United States, and explaining that \"[t]his bill makes it a crime to reveal the methods, techniques, and material used in the transmission by this Nation of enciphered or coded messages. . . . Further, it makes it a crime to reveal methods used by this Nation in breaking the secret codes of a foreign nation. It also prohibits under certain penalties the divulging of any information which may have come into this Government's hands as a result of such a code-breaking.\" H. R. Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was explained as covering \"only a small category of classified matter, a category which is both vital and vulnerable to an almost unique degree.\" Id., at 2. Existing legislation was deemed inadequate.\n\"At present two other acts protect this information, but only in a limited way. These are the Espionage Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat. 122). Under the first, unauthorized revelation of information of this kind can be penalized only if it can be proved that the person making the revelation did so with an intent to injure the United States. Under the second, only diplomatic codes and messages transmitted in diplomatic codes are protected. The present bill is designed to protect against knowing and willful publication or any other revelation of all important information affecting the United States communication intelligence operations and all direct information about all United States codes and ciphers.\" Ibid. Section 798 obviously was intended to cover publications by nonemployees of the Government and to ease the Government's burden in obtaining convictions. See H. R. Rep. No. 1895, supra, at 2-5. The identical Senate Report, not cited in parallel in the text of this footnote, is S. Rep. No. 111, 81st Cong., 1st Sess. (1949). [8] Section 793 (e) of 18 U.S. C. provides that: \"(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;\" is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should also be noted that 18 U.S. C. \u00a7 793 (g), added in 1950 (see 64 Stat. 1004; S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides that \"[i]f two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.\" [9] The amendment of \u00a7 793 that added subsection (e) was part of the Subversive Activities Control Act of 1950, which was in turn Title I of the Internal Security Act of 1950. See 64 Stat. 987. The report of the Senate Judiciary Committee best explains the purposes of the amendment: \"Section 18 of the bill amends section 793 of title 18 of the United States Code (espionage statute). The several paragraphs of section 793 of title 18 are designated as subsections (a) through (g) for purposes of convenient reference. The significant changes which would be made in section 793 of title 18 are as follows: \"(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the unlawful dissemination of `information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.' The phrase `which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation' would modify only `information relating to the national defense' and not the other items enumerated in the subsection. The fourth paragraph of section 793 is also amended to provide that only those with lawful possession of the items relating to national defense enumerated therein may retain them subject to demand therefor. Those who have unauthorized possession of such items are treated in a separate subsection. \"(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of items enumerated in paragraph 4 of section 793 must surrender possession thereof to the proper authorities without demand. Existing law provides no penalty for the unauthorized possession of such items unless a demand for them is made by the person entitled to receive them. The dangers surrounding the unauthorized possession of such items are selfevident, and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand. The only difference between subsection (d) and subsection (e) of section 793 is that a demand by the person entitled to receive the items would be a necessary element of an offense under subsection (d) where the possession is lawful, whereas such a demand would not be a necessary element of an offense under subsection (e) where the possession is unauthorized.\" S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added). It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern District of New York in this case, that in prosecuting for communicating or withholding a \"document\" as contrasted with similar action with respect to \"information\" the Government need not prove an intent to injure the United States or to benefit a foreign nation but only willful and knowing conduct. The District Court relied on Gorin v. United States, 312 U.S. 19 (1941). But that case arose under other parts of the predecessor to \u00a7 793, see 312 U.S., at 21-22\u2014parts that imposed different intent standards not repeated in \u00a7 793 (d) or \u00a7 793 (e). Cf. 18 U.S. C. \u00a7\u00a7 793 (a), (b), and (c). Also, from the face of subsection (e) and from the context of the Act of which it was a part, it seems undeniable that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution under \u00a7 793 (e) if they communicate or withhold the materials covered by that section. The District Court ruled that \"communication\" did not reach publication by a newspaper of documents relating to the national defense. I intimate no views on the correctness of that conclusion. But neither communication nor publication is necessary to violate the subsection. [10] Also relevant is 18 U.S. C. \u00a7 794. Subsection (b) thereof forbids in time of war the collection or publication, with intent that it shall be communicated to the enemy, of any information with respect to the movements of military forces, \"or with respect to the plans or conduct . . . of any naval or military operations . . . or any other information relating to the public defense, which might be useful to the enemy . . . .\" [1] See n. 3, infra. [2] But see Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). [3] There are several other statutory provisions prohibiting and punishing the dissemination of information, the disclosure of which Congress thought sufficiently imperiled national security to warrant that result. These include 42 U.S. C. \u00a7\u00a7 2161 through 2166 relating to the authority of the Atomic Energy Commission to classify and declassify \"Restricted Data\" [\"Restricted Data\" is a term of art employed uniquely by the Atomic Energy Act]. Specifically, 42 U.S. C. \u00a7 2162 authorizes the Atomic Energy Commission to classify certain information. Title 42 U.S. C. \u00a7 2274, subsection (a), provides penalties for a person who \"communicates, transmits, or discloses [restricted data] . . . with intent to injure the United States or with intent to secure an advantage to any foreign nation . . . .\" Subsection (b) of \u00a7 2274 provides lesser penalties for one who \"communicates, transmits, or discloses\" such information \"with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation . . . .\" Other sections of Title 42 of the United States Code dealing with atomic energy prohibit and punish acquisition, removal, concealment, tampering with, alteration, mutilation, or destruction of documents incorporating \"Restricted Data\" and provide penalties for employees and former employees of the Atomic Energy Commission, the armed services, contractors and licensees of the Atomic Energy Commission. Title 42 U.S. C. \u00a7\u00a7 2276, 2277. Title 50 U.S. C. App. \u00a7 781, 56 Stat. 390, prohibits the making of any sketch or other representation of military installations or any military equipment located on any military installation, as specified; and indeed Congress in the National Defense Act of 1940, 54 Stat. 676, as amended, 56 Stat. 179, conferred jurisdiction on federal district courts over civil actions \"to enjoin any violation\" thereof. 50 U.S. C. App. \u00a7 1152 (6). Title 50 U.S. C. \u00a7 783 (b) makes it unlawful for any officers or employees of the United States or any corporation which is owned by the United States to communicate material which has been \"classified\" by the President to any person who that governmental employee knows or has reason to believe is an agent or representative of any foreign government or any Communist organization. [*] The hearing in the Post case before Judge Gesell began at 8 a. m. on June 21, and his decision was rendered, under the hammer of a deadline imposed by the Court of Appeals, shortly before 5 p. m. on the same day. The hearing in the Times case before Judge Gurfein was held on June 18 and his decision was rendered on June 19. The Government's appeals in the two cases were heard by the Courts of Appeals for the District of Columbia and Second Circuits, each court sitting en banc, on June 22. Each court rendered its decision on the following afternoon. [1] As noted elsewhere the Times conducted its analysis of the 47 volumes of Government documents over a period of several months and did so with a degree of security that a government might envy. Such security was essential, of course, to protect the enterprise from others. Meanwhile the Times has copyrighted its material and there were strong intimations in the oral argument that the Times contemplated enjoining its use by any other publisher in violation of its copyright. Paradoxically this would afford it a protection, analogous to prior restraint, against all others\u2014a protection the Times denies the Government of the United States. [2] Interestingly the Times explained its refusal to allow the Government to examine its own purloined documents by saying in substance this might compromise its sources and informants! The Times thus asserts a right to guard the secrecy of its sources while denying that the Government of the United States has that power. [3] With respect to the question of inherent power of the Executive to classify papers, records, and documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for enforcement, there may be an analogy with respect to this Court. No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.","meta":{"dup_signals":{"dup_doc_count":1123,"dup_dump_count":99,"dup_details":{"2024-30":2,"2024-26":3,"2024-22":1,"2024-18":4,"2024-10":7,"2017-13":7,"2015-18":27,"2015-11":24,"2015-06":25,"2014-10":17,"2013-48":19,"2013-20":13,"2023-50":5,"2023-40":3,"2023-23":3,"2023-14":4,"2023-06":4,"2022-49":3,"2022-40":8,"2022-33":2,"2022-27":5,"2022-21":4,"2022-05":3,"2021-49":5,"2021-43":6,"2021-39":2,"2021-31":4,"2021-25":2,"2021-21":7,"2021-17":6,"2021-10":5,"2021-04":2,"2020-50":4,"2020-45":7,"2020-40":7,"2020-34":5,"2020-29":2,"2020-24":1,"2020-16":5,"2020-10":3,"2020-05":2,"2019-51":8,"2019-47":3,"2019-43":5,"2019-39":7,"2019-35":3,"2019-30":5,"2019-26":6,"2019-22":2,"2019-18":9,"2019-13":7,"2019-09":4,"2019-04":1,"2018-51":8,"2018-47":3,"2018-43":6,"2018-39":7,"2018-34":4,"2018-30":2,"2018-26":4,"2018-22":2,"2018-17":3,"2018-13":5,"2018-09":8,"2018-05":3,"2017-51":4,"2017-47":7,"2017-43":7,"2017-39":13,"2017-34":5,"2017-30":7,"2017-26":6,"2017-22":19,"2017-17":7,"2017-09":47,"2017-04":9,"2016-50":7,"2016-44":17,"2016-40":19,"2016-36":18,"2016-30":19,"2016-26":3,"2016-22":3,"2016-18":3,"2016-07":42,"2015-48":38,"2015-40":31,"2015-35":39,"2015-32":39,"2015-27":36,"2015-22":10,"2015-14":20,"2014-52":25,"2014-49":29,"2014-42":57,"2014-41":38,"2014-35":37,"2014-23":41,"2014-15":38}}},"subset":"freelaw"}
{"text":"323 U.S. 214 (1944) KOREMATSU v. UNITED STATES. No. 22. Supreme Court of United States. Argued October 11, 12, 1944. Decided December 18, 1944. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. *215 Messrs. Wayne M. Collins and Charles A. Horsky argued the cause, and Mr. Collins was on the brief, for petitioner. Solicitor General Fahy, with whom Assistant Attorney General Wechsler and Messrs. Edward J. Ennis, Ralph F. Fuchs, and John L. Burling were on the brief, for the United States. Messrs. Saburo Kido and A.L. Wirin filed a brief on behalf of the Japanese American Citizens League; and Messrs. Edwin Borchard, Charles A. Horsky, George Rublee, Arthur DeHon Hill, Winthrop Wadleigh, Osmond K. Fraenkel, Harold Evans, William Draper Lewis, and Thomas Raeburn White on behalf of the American Civil Liberties Union, as amici curiae, in support of petitioner. Messrs. Robert W. Kenney, Attorney General of California, George Neuner, Attorney General of Oregon, Smith Troy, Attorney General of Washington, and Fred E. Lewis, Acting Attorney General of Washington, filed a brief on behalf of the States of California, Oregon and Washington, as amici curiae, in support of the United States. MR. JUSTICE BLACK delivered the opinion of the Court. The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a \"Military Area,\" contrary to Civilian Exclusion Order No. 34 of the Commanding General *216 of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,[1] and the importance of the constitutional question involved caused us to grant certiorari. It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that \". . . whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.\" Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially *217 based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that \"the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. . . .\" One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a \"protection against espionage and against sabotage.\" In Hirabayashi v. United States, 320 U.S. 81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage. The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack. In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude *218 those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them. Here, as in the Hirabayashi case, supra, at p. 99, \". . . we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.\" Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of *219 whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.[2] We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547; Block v. Hirsh, 256 U.S. 135, 154-5. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kawato, 317 U.S. 69, 73. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory *220 exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. It is argued that on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands. There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time \"until and to the extent that a future proclamation or order should so permit or direct.\" 7 Fed. Reg. 2601. That \"future order,\" the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did \"direct\" exclusion from the area of all persons of Japanese ancestry, before 12 o'clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of Congress. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the March 27 and May 3 orders, whether he remained in or left the area. It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had *221 already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as \"assembly centers,\" in order \"to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration.\" Public Proclamation No. 4, 7 Fed. Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed. Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand. We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear *222 when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U.S. 299, 304. There is no reason why violations of these orders, insofar as they were promulgated pursuant to Congressional enactment, should not be treated as separate offenses. The Endo case, post, p. 283, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected. Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us. Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion *223 Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid. It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers \u2014 and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies \u2014 we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders \u2014 as inevitably it must \u2014 determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for *224 action was great, and time was short. We cannot \u2014 by availing ourselves of the calm perspective of hindsight \u2014 now say that at that time these actions were unjustified. Affirmed. MR. JUSTICE FRANKFURTER, concurring. According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Hirabayashi v. United States, 320 U.S. 81, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own. The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is \"the power to wage war successfully.\" Hirabayashi v. United States, supra at 93; and see Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 426. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as \"an *225 unconstitutional order\" is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. \"The war power of the United States, like its other powers . . . is subject to applicable constitutional limitations\", Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156. To recognize that military orders are \"reasonably expedient military precautions\" in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447; 155 U.S. 3, and Monongahela Bridge Co. v. United States, 216 U.S. 177. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours. MR. JUSTICE ROBERTS. I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights. This is not a case of keeping people off the streets at night as was Hirabayashi v. United States, 320 U.S. 81, *226 nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated. The Government's argument, and the opinion of the court, in my judgment, erroneously divide that which is single and indivisible and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home, by refusing voluntarily to leave and, so, knowingly and intentionally, defying the order and the Act of Congress. The petitioner, a resident of San Leandro, Alameda County, California, is a native of the United States of Japanese ancestry who, according to the uncontradicted evidence, is a loyal citizen of the nation. A chronological recitation of events will make it plain that the petitioner's supposed offense did not, in truth, consist in his refusal voluntarily to leave the area which included his home in obedience to the order excluding him therefrom. Critical attention must be given to the dates and sequence of events. December 8, 1941, the United States declared war on Japan. February 19, 1942, the President issued Executive Order No. 9066,[1] which, after stating the reason for issuing the *227 order as \"protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities,\" provided that certain Military Commanders might, in their discretion, \"prescribe military areas\" and define their extent, \"from which any or all persons may be excluded, and with respect to which the right of any person to enter, remain in, or leave shall be subject to whatever restrictions\" the \"Military Commander may impose in his discretion.\" February 20, 1942, Lieutenant General DeWitt was designated Military Commander of the Western Defense Command embracing the westernmost states of the Union, \u2014 about one-fourth of the total area of the nation. March 2, 1942, General DeWitt promulgated Public Proclamation No. 1,[2] which recites that the entire Pacific Coast is \"particularly subject to attack, to attempted invasion . . . and, in connection therewith, is subject to espionage and acts of sabotage.\" It states that \"as a matter of military necessity\" certain military areas and zones are established known as Military Areas Nos. 1 and 2. It adds that \"Such persons or classes of persons as the situation may require\" will, by subsequent orders, \"be excluded from all of Military Area No. 1\" and from certain zones in Military Area No. 2. Subsequent proclamations were made which, together with Proclamation No. 1, included in such areas and zones all of California, Washington, Oregon, Idaho, Montana, Nevada and Utah, and the southern portion of Arizona. The orders required that if any person of Japanese, German or Italian ancestry residing in Area No. 1 desired to change his habitual residence he must execute and deliver to the authorities a Change of Residence Notice. San Leandro, the city of petitioner's residence, lies in Military Area No. 1. *228 On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that in which he lived. March 21, 1942, Congress enacted[3] that anyone who knowingly \"shall enter, remain in, leave, or commit any act in any military area or military zone prescribed . . . by any military commander . . . contrary to the restrictions applicable to any such area or zone or contrary to the order of . . . any such military commander\" shall be guilty of a misdemeanor. This is the Act under which the petitioner was charged. March 24, 1942, General DeWitt instituted the curfew for certain areas within his command, by an order the validity of which was sustained in Hirabayashi v. United States, supra. March 24, 1942, General DeWitt began to issue a series of exclusion orders relating to specified areas. March 27, 1942, by Proclamation No. 4,[4] the General recited that \"it is necessary, in order to provide for the welfare and to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration\"; and ordered that, as of March 29, 1942, \"all alien Japanese and persons of Japanese ancestry who are within the limits of Military Area No. 1, be and they are hereby *229 prohibited from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct.\"[5] No order had been made excluding the petitioner from the area in which he lived. By Proclamation No. 4 he was, after March 29, 1942, confined to the limits of Area No. 1. If the Executive Order No. 9066 and the Act of Congress meant what they said, to leave that area, in the face of Proclamation No. 4, would be to commit a misdemeanor. May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34[6] providing that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry, both alien and non-alien, were to be excluded from a described portion of Military Area No. 1, which included the County of Alameda, California. The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942, supra. It is important to note that the order, by its express terms, had no application to persons within the bounds \"of an established Assembly Center pursuant to instructions from this Headquarters .. .\" The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution. *230 The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document, \u2014 and, in the light of the above recitation, I think it is not, \u2014 that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order. In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing. June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty and convicted. Sentence was suspended and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 9102[7] establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has *231 been confined either in an Assembly Center, within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Endo (post, p. 283) demonstrate, he was illegally held in custody. The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34 ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument then is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature, \u2014 a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case actually before the court. I might agree with the court's disposition of the hypothetical case.[8] The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature the Hirabayashi case would be authority for sustaining it. *232 But the facts above recited, and those set forth in Ex parte Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality. As I have said above, the petitioner, prior to his arrest, was faced with two diametrically contradictory orders given sanction by the Act of Congress of March 21, 1942. The earlier of those orders made him a criminal if he left the zone in which he resided; the later made him a criminal if he did not leave. I had supposed that if a citizen was constrained by two laws, or two orders having the force of law, and obedience to one would violate the other, to punish him for violation of either would deny him due process of law. And I had supposed that under these circumstances a conviction for violating one of the orders could not stand. We cannot shut our eyes to the fact that had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation instead of addressing ourselves to the actualities of the case? *233 These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that where he was subject to two conflicting laws he was not bound, in order to escape violation of one or the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter. Again it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute but must obey it though he knows it is no law and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law. Moreover, it is beside the point to rest decision in part on the fact that the petitioner, for his own reasons, wished to remain in his home. If, as is the fact, he was constrained so to do, it is indeed a narrow application of constitutional rights to ignore the order which constrained him, in order to sustain his conviction for violation of another contradictory order. I would reverse the judgment of conviction. MR. JUSTICE MURPHY, dissenting. This exclusion of \"all persons of Japanese ancestry, both alien and non-alien,\" from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over \"the very brink of constitutional power\" and falls into the ugly abyss of racism. In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration *234 to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation. At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. \"What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.\" Sterling v. Constantin, 287 U.S. 378, 401. The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so \"immediate, imminent, and impending\" as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell, 13 Wall. 623, 627-8; Mitchell v. Harmony, 13 How. 115, 134-5; Raymond v. Thomas, 91 U.S. 712, 716. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast \"all persons of Japanese ancestry, both alien and non-alien,\" clearly does not meet that test. Being an obvious racial discrimination, the *235 order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an \"immediate, imminent, and impending\" public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law. It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption. That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than *236 bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area.[1] In it he refers to all individuals of Japanese descent as \"subversive,\" as belonging to \"an enemy race\" whose \"racial strains are undiluted,\" and as constituting \"over 112,000 potential enemies . . . at large today\" along the Pacific Coast.[2] In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,[3] or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group. Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not *237 ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be \"a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.\"[4] They are claimed to be given to \"emperor worshipping ceremonies\"[5] and to \"dual citizenship.\"[6] Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,[7] together with facts as to *238 certain persons being educated and residing at length in Japan.[8] It is intimated that many of these individuals deliberately resided \"adjacent to strategic points,\" thus enabling them \"to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.\"[9] The need for protective custody is also asserted. The report refers without identity to \"numerous incidents of violence\" as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the \"situation was fraught with danger to the Japanese population itself\" and that the general public \"was ready to take matters into its own hands.\"[10] Finally, it is intimated, though not directly *239 charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,[11] as well as for unidentified radio transmissions and night signalling. The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices \u2014 the same people who have been among the foremost advocates of the evacuation.[12] A military judgment *240 based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.[13] The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. *241 No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group \"were unknown and time was of the essence.\"[14] Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these \"subversive\" persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be. Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,[15] a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It *242 seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved \u2014 or at least for the 70,000 American citizens \u2014 especially when a large part of this number represented children and elderly men and women.[16] Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals. I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution. MR. JUSTICE JACKSON, dissenting. Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by *243 residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four \u2014 the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole \u2014 only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that \"no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.\" But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should *244 enact such a criminal law, I should suppose this Court would refuse to enforce it. But the \"law\" which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine. It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law. But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is *245 what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it. The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order. In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint. Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more *246 subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as \"the tendency of a principle to expand itself to the limit of its logic.\"[1] A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case. It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Hirabayashi v. United States, 320 U.S. 81, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience. In that case we were urged to consider only the curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language *247 will do. He said: \"Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.\" 320 U.S. at 101. \"We decide only the issue as we have defined it \u2014 we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.\" 320 U.S. at 102. And again: \"It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.\" 320 U.S. at 105. (Italics supplied.) However, in spite of our limiting words we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know. I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. *248 Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history. My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner. NOTES [1] 140 F.2d 289. [2] Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, Part II, 608-726; Final Report, Japanese Evacuation from the West Coast, 1942, 309-327; Hearings before the Committee on Immigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain nationals of the United States, pp. 37-42, 49-58. [1] 7 Fed. Reg. 1407. [2] 7 Fed. Reg. 2320. [3] 56 Stat. 173. [4] 7 Fed. Reg. 2601. [5] The italics in the quotation are mine. The use of the word \"voluntarily\" exhibits a grim irony probably not lost on petitioner and others in like case. Either so, or its use was a disingenuous attempt to camouflage the compulsion which was to be applied. [6] 7 Fed. Reg. 3967. [7] 7 Fed. Reg. 2165. [8] My agreement would depend on the definition and application of the terms \"temporary\" and \"emergency.\" No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained, at the date of the restraint out of which the litigation arose. Cf. Chastleton Corp. v. Sinclair, 264 U.S. 543. [1] Final Report, Japanese Evacuation from the West Coast, 1942, by Lt. Gen. J.L. DeWitt. This report is dated June 5, 1943, but was not made public until January, 1944. [2] Further evidence of the Commanding General's attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739-40 (78th Cong., 1st Sess.): \"I don't want any of them [persons of Japanese ancestry] here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. . . . The danger of the Japanese was, and is now \u2014 if they are permitted to come back \u2014 espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. . . . But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. . . .\" [3] The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that \"while it was believed that some were loyal, it was known that many were not.\" (Italics added.) [4] Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States. [5] Final Report, pp. 10-11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown. [6] Final Report, p. 22. The charge of \"dual citizenship\" springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claim as to all born in the United States after 1925. See Freeman, \"Genesis, Exodus, and Leviticus: Genealogy, Evacuation, and Law,\" 28 Cornell L.Q. 414, 447-8, and authorities there cited; McWilliams, Prejudice, 123-4 (1944). [7] Final Report, pp. 12-13. We have had various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121-3 (1944). [8] Final Report, pp. 13-15. Such persons constitute a very small part of the entire group and most of them belong to the Kibei movement \u2014 the actions and membership of which are well known to our Government agents. [9] Final Report, p. 10; see also pp. vii, 9, 15-17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese Americans. See McWilliams, Prejudice, 119-121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59-93. [10] Final Report, pp. 8-9. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.) 1-2. Cf. House Report No. 2124 (77th Cong., 2d Sess.) 145-7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944). [11] Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942 \u2014 a considerable time after the Japanese Americans had been evacuated from their homes and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3. [12] Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154-6; McWilliams, Prejudice, 126-8 (1944). Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, has frankly admitted that \"We're charged with wanting to get rid of the Japs for selfish reasons.. . . We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. . . . They undersell the white man in the markets. . . . They work their women and children while the white farmer has to pay wages for his help. If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either.\" Quoted by Taylor in his article \"The People Nobody Wants,\" 214 Sat. Eve. Post 24, 66 (May 9, 1942). [13] See notes 4-12, supra. [14] Final Report, p. vii; see also p. 18. [15] The Final Report, p. 34, makes the amazing statement that as of February 14, 1942, \"The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.\" Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage. [16] During a period of six months, the 112 alien tribunals or hearing boards set up by the British Government shortly after the outbreak of the present war summoned and examined approximately 74,000 German and Austrian aliens. These tribunals determined whether each individual enemy alien was a real enemy of the Allies or only a \"friendly enemy.\" About 64,000 were freed from internment and from any special restrictions, and only 2,000 were interned. Kempner, \"The Enemy Alien Problem in the Present War,\" 34 Amer. Journ. of Int. Law 443, 444-46; House Report No. 2124 (77th Cong., 2d Sess.), 280-1. 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{"text":"347 U.S. 483 (1954) BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL. No. 1. Supreme Court of United States. Argued December 9, 1952. Reargued December 8, 1953. Decided May 17, 1954. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS.[*]*484 Robert L. Carter argued the cause for appellants in No. 1 on the original argument and on the reargument. Thurgood Marshall argued the cause for appellants in No. 2 on the original argument and Spottswood W. Robinson, III, for appellants in No. 4 on the original argument, and both argued the causes for appellants in Nos. 2 and 4 on the reargument. Louis L. Redding and Jack Greenberg argued the cause for respondents in No. 10 on the original argument and Jack Greenberg and Thurgood Marshall on the reargument. On the briefs were Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, Louis L. Redding, Jack Greenberg, George E. C. Hayes, William R. Ming, Jr., Constance Baker Motley, James M. Nabrit, Jr., Charles S. Scott, Frank D. Reeves, Harold R. Boulware and Oliver W. Hill for appellants in Nos. 1, 2 and 4 and respondents in No. 10; George M. Johnson for appellants in Nos. 1, 2 and 4; and Loren Miller for appellants in Nos. 2 and 4. Arthur D. Shores and A. T. Walden were on the Statement as to Jurisdiction and a brief opposing a Motion to Dismiss or Affirm in No. 2. Paul E. Wilson, Assistant Attorney General of Kansas, argued the cause for appellees in No. 1 on the original argument and on the reargument. With him on the briefs was Harold R. Fatzer, Attorney General. John W. Davis argued the cause for appellees in No. 2 on the original argument and for appellees in Nos. 2 and 4 on the reargument. With him on the briefs in No. 2 were T. C. Callison, Attorney General of South Carolina, Robert McC. Figg, Jr., S. E. Rogers, William R. Meagher and Taggart Whipple. *485 J. Lindsay Almond, Jr., Attorney General of Virginia, and T. Justin Moore argued the cause for appellees in No. 4 on the original argument and for appellees in Nos. 2 and 4 on the reargument. On the briefs in No. 4 were J. Lindsay Almond, Jr., Attorney General, and Henry T. Wickham, Special Assistant Attorney General, for the State of Virginia, and T. Justin Moore, Archibald G. Robertson, John W. Riely and T. Justin Moore, Jr. for the Prince Edward County School Authorities, appellees. H. Albert Young, Attorney General of Delaware, argued the cause for petitioners in No. 10 on the original argument and on the reargument. With him on the briefs was Louis J. Finger, Special Deputy Attorney General. By special leave of Court, Assistant Attorney General Rankin argued the cause for the United States on the reargument, as amicus curiae, urging reversal in Nos. 1, 2 and 4 and affirmance in No. 10. With him on the brief were Attorney General Brownell, Philip Elman, Leon Ulman, William J. Lamont and M. Magdelena Schoch. James P. McGranery, then Attorney General, and Philip Elman filed a brief for the United States on the original argument, as amicus curiae, urging reversal in Nos. 1, 2 and 4 and affirmance in No. 10. Briefs of amici curiae supporting appellants in No. 1 were filed by Shad Polier, Will Maslow and Joseph B. Robison for the American Jewish Congress; by Edwin J. Lukas, Arnold Forster, Arthur Garfield Hays, Frank E. Karelsen, Leonard Haas, Saburo Kido and Theodore Leskes for the American Civil Liberties Union et al.; and by John Ligtenberg and Selma M. Borchardt for the American Federation of Teachers. Briefs of amici curiae supporting appellants in No. 1 and respondents in No. 10 were filed by Arthur J. Goldberg and Thomas E. Harris *486 for the Congress of Industrial Organizations and by Phineas Indritz for the American Veterans Committee, Inc. MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.[1] *487 In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, *488 they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called \"separate but equal\" doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools. The plaintiffs contend that segregated public schools are not \"equal\" and cannot be made \"equal,\" and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.[2] Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.[3] *489 Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among \"all persons born or naturalized in the United States.\" Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time.[4] In the South, the movement toward free common schools, supported *490 by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education. In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.[5] The doctrine of *491 \"separate but equal\" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.[6] American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the \"separate but equal\" doctrine in the field of public education.[7] In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged.[8] In more recent cases, all on the graduate school *492 level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education. In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other \"tangible\" factors.[9] Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education. In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout *493 the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other \"tangible\" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on \"those qualities which are incapable of objective measurement but which make for greatness in a law school.\" In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: \". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.\" *494 Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: \"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.\"[10] Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.[11] Any language *495 in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of \"separate but equal\" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.[12] Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question\u2014 the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.[13] The Attorney General *496 of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.[14] It is so ordered. NOTES [*] Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United States District Court for the Eastern District of South Carolina, argued December 9-10, 1952, reargued December 7-8, 1953; No. 4, Davis et al. v. County School Board of Prince Edward County, Virginia, et al., on appeal from the United States District Court for the Eastern District of Virginia, argued December 10, 1952, reargued December 7-8, 1953; and No. 10, Gebhart et al. v. Belton et al., on certiorari to the Supreme Court of Delaware, argued December 11, 1952, reargued December 9, 1953. [1] In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan. Gen. Stat. \u00a7 72-1724 (1949). Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S. C. \u00a7\u00a7 2281 and 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F. Supp. 797. The case is here on direct appeal under 28 U.S. C. \u00a7 1253.\nIn the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S. C. Const., Art. XI, \u00a7 7; S. C. Code \u00a7 5377 (1942). The three-judge District Court, convened under 28 U.S. C. \u00a7\u00a7 2281 and 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F. Supp. 529. This Court vacated the District Court's judgment and remanded the case for the purpose of obtaining the court's views on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F. Supp. 920. The case is again here on direct appeal under 28 U.S. C. \u00a7 1253. In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward county. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va. Const., \u00a7 140; Va. Code \u00a7 22-221 (1950). The three-judge District Court, convened under 28 U.S. C. \u00a7\u00a7 2281 and 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to \"proceed with all reasonable diligence and dispatch to remove\" the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F. Supp. 337. The case is here on direct appeal under 28 U.S. C. \u00a7 1253. In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del. Const., Art. X, \u00a7 2; Del. Rev. Code \u00a7 2631 (1935). The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. Id., at 865. The Chancellor's decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891. The plaintiffs, who were successful below, did not submit a cross-petition. [2] 344 U.S. 1, 141, 891. [3] 345 U.S. 972. The Attorney General of the United States participated both Terms as amicus curiae. [4] For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II; Cubberley, Public Education in the United States (1934 ed.), cc. II-XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Cremin, supra, at 269-275; Cubberley, supra, at 288-339, 408-431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South (e. g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408-423. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. Id., at 427-428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112-132, 175-195. Compulsory school attendance laws were not generally adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563-565. [5] Slaughter-House Cases, 16 Wall. 36, 67-72 (1873); Strauder v. West Virginia, 100 U.S. 303, 307-308 (1880): \"It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race,\u2014the right to exemption from unfriendly legislation against them distinctively as colored,\u2014exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.\" See also Virginia v. Rives, 100 U.S. 313, 318 (1880); Ex parte Virginia, 100 U.S. 339, 344-345 (1880). [6] The doctrine apparently originated in Roberts v. City of Boston, 59 Mass. 198, 206 (1850), upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern. [7] See also Berea College v. Kentucky, 211 U.S. 45 (1908). [8] In the Cumming case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school. [9] In the Kansas case, the court below found substantial equality as to all such factors. 98 F. Supp. 797, 798. In the South Carolina case, the court below found that the defendants were proceeding \"promptly and in good faith to comply with the court's decree.\" 103 F. Supp. 920, 921. In the Virginia case, the court below noted that the equalization program was already \"afoot and progressing\" (103 F. Supp. 337, 341); since then, we have been advised, in the Virginia Attorney General's brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state's equalization program was well under way. 91 A.2d 137, 149. [10] A similar finding was made in the Delaware case: \"I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.\" 87 A.2d 862, 865. [11] K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). [12] See Bolling v. Sharpe, post, p. 497, concerning the Due Process Clause of the Fifth Amendment. [13] \"4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment \"(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or \"(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? \"5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (b), \"(a) should this Court formulate detailed decrees in these cases; \"(b) if so, what specific issues should the decrees reach; \"(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; \"(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?\" [14] See Rule 42, Revised Rules of this Court (effective July 1, 1954).","meta":{"dup_signals":{"dup_doc_count":1419,"dup_dump_count":99,"dup_details":{"2024-30":2,"2024-26":8,"2024-22":2,"2024-18":1,"2024-10":7,"2017-13":17,"2015-18":36,"2015-11":36,"2015-06":38,"2014-10":28,"2013-48":36,"2013-20":27,"2023-50":6,"2023-40":6,"2023-23":5,"2023-14":4,"2023-06":5,"2022-49":3,"2022-40":9,"2022-33":4,"2022-27":5,"2022-21":3,"2022-05":5,"2021-49":4,"2021-43":2,"2021-39":5,"2021-31":2,"2021-25":3,"2021-21":3,"2021-17":2,"2021-10":9,"2021-04":7,"2020-50":2,"2020-45":6,"2020-40":2,"2020-34":6,"2020-29":5,"2020-24":3,"2020-16":3,"2020-10":5,"2020-05":6,"2019-51":5,"2019-47":5,"2019-43":6,"2019-39":6,"2019-35":6,"2019-30":8,"2019-26":10,"2019-22":5,"2019-18":10,"2019-13":6,"2019-09":9,"2019-04":2,"2018-51":6,"2018-47":11,"2018-43":10,"2018-39":1,"2018-34":5,"2018-30":7,"2018-26":3,"2018-22":8,"2018-17":5,"2018-13":6,"2018-09":10,"2018-05":10,"2017-51":7,"2017-47":6,"2017-43":10,"2017-39":10,"2017-34":11,"2017-30":11,"2017-26":13,"2017-22":12,"2017-17":13,"2017-09":34,"2017-04":15,"2016-50":15,"2016-44":18,"2016-40":18,"2016-36":20,"2016-30":19,"2016-26":5,"2016-22":6,"2016-18":7,"2016-07":33,"2015-48":34,"2015-40":21,"2015-35":38,"2015-32":34,"2015-27":31,"2015-22":15,"2015-14":31,"2014-52":37,"2014-49":45,"2014-42":75,"2014-41":60,"2014-35":54,"2014-23":69,"2014-15":64}}},"subset":"freelaw"}
{"text":"515 U.S. 819 (1995) ROSENBERGER et al. v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA et al. No. 94-329. United States Supreme Court. Argued March 1, 1995. Decided June 29, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT *821 *821 *822 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. O'Connor, J., post, p. 846, and Thomas, J., post, p. 852, filed concurring opinions. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 863. Michael W. McConnell argued the cause for petitioners. With him on the briefs was Michael P. McDonald. John C. Jeffries, Jr., argued the cause for respondents. With him on the brief was James J. Mingle.[*] Justice Kennedy, delivered the opinion of the Court. The University of Virginia, an instrumentality of the Commonwealth for which it is named and thus bound by the First and Fourteenth Amendments, authorizes the payment of outside contractors for the printing costs of a variety of student publications. It withheld any authorization for payments on behalf of petitioners for the sole reason that their student *823 paper \"primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.\" That the paper did promote or manifest views within the defined exclusion seems plain enough. The challenge is to the University's regulation and its denial of authorization, the case raising issues under the Speech and Establishment Clauses of the First Amendment.\nI The public corporation we refer to as the \"University\" is denominated by state law as \"the Rector and Visitors of the University of Virginia,\" Va. Code Ann. \u00a7 23-69 (1993), and it is responsible for governing the school, see \u00a7\u00a7 23-69 to 23-80. Founded by Thomas Jefferson in 1819, and ranked by him, together with the authorship of the Declaration of Independence and of the Virginia Act for Religious Freedom, Va. Code Ann. \u00a7 57-1 (1950), as one of his proudest achievements, the University is among the Nation's oldest and most respected seats of higher learning. It has more than 11,000 undergraduate students, and 6,000 graduate and professional students. An understanding of the case requires a somewhat detailed description of the program the University created to support extracurricular student activities on its campus. Before a student group is eligible to submit bills from its outside contractors for payment by the fund described below, it must become a \"Contracted Independent Organization\" (CIO). CIO status is available to any group the majority of whose members are students, whose managing officers are full-time students, and that complies with certain procedural requirements. App. to Pet. for Cert. 2a. A CIO must file its constitution with the University; must pledge not to discriminate in its membership; and must include in dealings with third parties and in all written materials a disclaimer, stating that the CIO is independent of the University and that the University is not responsible for the CIO. App. 27-28. CIO's enjoy access to University facilities, including meeting rooms and computer terminals. Id., at 30. *824 A standard agreement signed between each CIO and the University provides that the benefits and opportunities afforded to CIO's \"should not be misinterpreted as meaning that those organizations are part of or controlled by the University, that the University is responsible for the organizations' contracts or other acts or omissions, or that the University approves of the organizations' goals or activities.\" Id., at 26. All CIO's may exist and operate at the University, but some are also entitled to apply for funds from the Student Activities Fund (SAF). Established and governed by University Guidelines, the purpose of the SAF is to support a broad range of extracurricular student activities that \"are related to the educational purpose of the University.\" App. to Pet. for Cert. 61a. The SAF is based on the University's \"recogni[tion] that the availability of a wide range of opportunities\" for its students \"tends to enhance the University environment.\" App. 26. The Guidelines require that it be administered \"in a manner consistent with the educational purpose of the University as well as with state and federal law.\" App. to Pet. for Cert. 61a. The SAF receives its money from a mandatory fee of $14 per semester assessed to each full-time student. The Student Council, elected by the students, has the initial authority to disburse the funds, but its actions are subject to review by a faculty body chaired by a designee of the Vice President for Student Affairs. Cf. id., at 63a\u201464a. Some, but not all, CIO's may submit disbursement requests to the SAF. The Guidelines recognize 11 categories of student groups that may seek payment to third-party contractors because they \"are related to the educational purpose of the University of Virginia.\" Id., at 61a\u201462a. One of these is \"student news, information, opinion, entertainment, or academic communications media groups.\" Id., at 61a. The Guidelines also specify, however, that the costs of certain activities of CIO's that are otherwise eligible for funding *825 will not be reimbursed by the SAF. The student activities that are excluded from SAF support are religious activities, philanthropic contributions and activities, political activities, activities that would jeopardize the University's tax-exempt status, those which involve payment of honoraria or similar fees, or social entertainment or related expenses. Id., at 62a\u201463a. The prohibition on \"political activities\" is defined so that it is limited to electioneering and lobbying. The Guidelines provide that \"[t]hese restrictions on funding political activities are not intended to preclude funding of any otherwise eligible student organization which . . . espouses particular positions or ideological viewpoints, including those that may be unpopular or are not generally accepted.\" Id., at 65a\u201466a. A \"religious activity,\" by contrast, is defined as any activity that \"primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.\" Id., at 66a. The Guidelines prescribe these criteria for determining the amounts of third-party disbursements that will be allowed on behalf of each eligible student organization: the size of the group, its financial self-sufficiency, and the Universitywide benefit of its activities. If an organization seeks SAF support, it must submit its bills to the Student Council, which pays the organization's creditors upon determining that the expenses are appropriate. No direct payments are made to the student groups. During the 1990-1991 academic year, 343 student groups qualified as CIO's. One hundred thirty-five of them applied for support from the SAF, and 118 received funding. Fifteen of the groups were funded as \"student news, information, opinion, entertainment, or academic communications media groups.\" Petitioners' organization, Wide Awake Productions (WAP), qualified as a CIO. Formed by petitioner Ronald Rosenberger and other undergraduates in 1990, WAP was established \"[t]o publish a magazine of philosophical and religious expression,\" \"[t]o facilitate discussion which fosters an atmosphere *826 of sensitivity to and tolerance of Christian viewpoints,\" and \"[t]o provide a unifying focus for Christians of multicultural backgrounds.\" App. 67. WAP publishes Wide Awake: A Christian Perspective at the University of Virginia. The paper's Christian viewpoint was evident from the first issue, in which its editors wrote that the journal \"offers a Christian perspective on both personal and community issues, especially those relevant to college students at the University of Virginia.\" App. 45. The editors committed the paper to a two-fold mission: \"to challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means.\" Ibid. The first issue had articles about racism, crisis pregnancy, stress, prayer, C. S. Lewis' ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors. Each page of Wide Awake, and the end of each article or review, is marked by a cross. The advertisements carried in Wide Awake also reveal the Christian perspective of the journal. For the most part, the advertisers are churches, centers for Christian study, or Christian bookstores. By June 1992, WAP had distributed about 5,000 copies of Wide Awake to University students, free of charge. WAP had acquired CIO status soon after it was organized. This is an important consideration in this case, for had it been a \"religious organization,\" WAP would not have been accorded CIO status. As defined by the Guidelines, a \"[r]eligious [o]rganization\" is \"an organization whose purpose is to practice a devotion to an acknowledged ultimate reality or deity.\" App. to Pet. for Cert. 66a. At no stage in this controversy has the University contended that WAP is such an organization. *827 A few months after being given CIO status, WAP requested the SAF to pay its printer $5,862 for the costs of printing its newspaper. The Appropriations Committee of the Student Council denied WAP's request on the ground that Wide Awake was a \"religious activity\" within the meaning of the Guidelines, i. e., that the newspaper \"promote[d] or manifest[ed] a particular belie[f] in or about a deity or an ultimate reality.\" Ibid. It made its determination after examining the first issue. App. 54. WAP appealed the denial to the full Student Council, contending that WAP met all the applicable Guidelines and that denial of SAF support on the basis of the magazine's religious perspective violated the Constitution. The appeal was denied without further comment, and WAP appealed to the next level, the Student Activities Committee. In a letter signed by the Dean of Students, the committee sustained the denial of funding. App. 55. Having no further recourse within the University structure, WAP, Wide Awake, and three of its editors and members filed suit in the United States District Court for the Western District of Virginia, challenging the SAF's action as violative of Rev. Stat. \u00a7 1979, 42 U. S. C. \u00a7 1983. They alleged that refusal to authorize payment of the printing costs of the publication, solely on the basis of its religious editorial viewpoint, violated their rights to freedom of speech and press, to the free exercise of religion, and to equal protection of the law. They relied also upon Article I of the Virginia Constitution and the Virginia Act for Religious Freedom, Va. Code Ann. \u00a7\u00a7 57-1, 57-2 (1986 and Supp. 1994), but did not pursue those theories on appeal. The suit sought damages for the costs of printing the paper, injunctive and declaratory relief, and attorney's fees. On cross-motions for summary judgment, the District Court ruled for the University, holding that denial of SAF support was not an impermissible content or viewpoint discrimination *828 against petitioners' speech, and that the University's Establishment Clause concern over its \"religious activities\" was a sufficient justification for denying payment to third-party contractors. The court did not issue a definitive ruling on whether reimbursement, had it been made here, would or would not have violated the Establishment Clause. 795 F. Supp. 175, 181-182 (WD Va. 1992). The United States Court of Appeals for the Fourth Circuit, in disagreement with the District Court, held that the Guidelines did discriminate on the basis of content. It ruled that, while the State need not underwrite speech, there was a presumptive violation of the Speech Clause when viewpoint discrimination was invoked to deny third-party payment otherwise available to CIO's. 18 F. 3d 269, 279-281 (1994). The Court of Appeals affirmed the judgment of the District Court nonetheless, concluding that the discrimination by the University was justified by the \"compelling interest in maintaining strict separation of church and state.\" Id., at 281. We granted certiorari. 513 U. S. 959 (1994).\nII It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984). Discrimination against speech because of its message is presumed to be unconstitutional. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641-643 (1994). These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, *829 115 (1991). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. See R. A. V. v. St. Paul, 505 U. S. 377, 391 (1992). Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 46 (1983). These principles provide the framework forbidding the State to exercise viewpoint discrimination, even when the limited public forum is one of its own creation. In a case involving a school district's provision of school facilities for private uses, we declared that \"[t]here is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated.\" Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 390 (1993). The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. See, e. g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985); Perry Ed. Assn., supra, at 49. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not \"reasonable in light of the purpose served by the forum,\" Cornelius, supra, at 804-806; see also Perry Ed. Assn., supra, at 46, 49, nor may it discriminate against speech on the basis of its viewpoint, Lamb's Chapel, supra, at 392-393; see also Perry Ed. Assn., supra, at 46; R. A. V., supra, at 386-388, 391-393; cf. Texas v. Johnson, 491 U. S. 397, 414-415 (1989). Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, *830 on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations. See Perry Ed. Assn., supra, at 46. The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable. See, e. g., Perry Ed. Assn., supra, at 46-47 (forum analysis of a school mail system); Cornelius, supra, at 801 (forum analysis of charitable contribution program). The most recent and most apposite case is our decision in Lamb's Chapel, supra. There, a school district had opened school facilities for use after school hours by community groups for a wide variety of social, civic, and recreational purposes. The district, however, had enacted a formal policy against opening facilities to groups for religious purposes. Invoking its policy, the district rejected a request from a group desiring to show a film series addressing various child-rearing questions from a \"Christian perspective.\" There was no indication in the record in Lamb's Chapel that the request to use the school facilities was \"denied, for any reason other than the fact that the presentation would have been from a religious perspective.\" 508 U. S., at 393-394. Our conclusion was unanimous: \"[I]t discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.\" Id., at 393. The University does acknowledge (as it must in light of our precedents) that \"ideologically driven attempts to suppress a particular point of view are presumptively unconstitutional in funding, as in other contexts,\" but insists that this case does not present that issue because the Guidelines draw lines based on content, not viewpoint. Brief for Respondents 17, n. 10. As we have noted, discrimination against one set of *831 views or ideas is but a subset or particular instance of the more general phenomenon of content discrimination. See, e. g., R. A. V., supra, at 391. And, it must be acknowledged, the distinction is not a precise one. It is, in a sense, something of an understatement to speak of religious thought and discussion as just a viewpoint, as distinct from a comprehensive body of thought. The nature of our origins and destiny and their dependence upon the existence of a divine being have been subjects of philosophic inquiry throughout human history. We conclude, nonetheless, that here, as in Lamb's Chapel, viewpoint discrimination is the proper way to interpret the University's objections to Wide Awake. By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered. The prohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments, for the subjects discussed were otherwise within the approved category of publications. The dissent's assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech. Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint. The dissent's declaration that debate is not skewed so long as multiple *832 voices are silenced is simply wrong; the debate is skewed in multiple ways. The University's denial of WAP's request for third-party payments in the present case is based upon viewpoint discrimination not unlike the discrimination the school district relied upon in Lamb's Chapel and that we found invalid. The church group in Lamb's Chapel would have been qualified as a social or civic organization, save for its religious purposes. Furthermore, just as the school district in Lamb's Chapel pointed to nothing but the religious views of the group as the rationale for excluding its message, so in this case the University justifies its denial of SAF participation to WAP on the ground that the contents of Wide Awake reveal an avowed religious perspective. See supra, at 827. It bears only passing mention that the dissent's attempt to distinguish Lamb's Chapel is entirely without support in the law. Relying on the transcript of oral argument, the dissent seems to argue that we found viewpoint discrimination in that case because the government excluded Christian, but not atheistic, viewpoints from being expressed in the forum there. Post, at 897-898, and n. 13. The Court relied on no such distinction in holding that discriminating against religious speech was discriminating on the basis of viewpoint. There is no indication in the opinion of the Court (which, unlike an advocate's statements at oral argument, is the law) that exclusion or inclusion of other religious or antireligious voices from that forum had any bearing on its decision. The University tries to escape the consequences of our holding in Lamb's Chapel by urging that this case involves the provision of funds rather than access to facilities. The University begins with the unremarkable proposition that the State must have substantial discretion in determining how to allocate scarce resources to accomplish its educational mission. Citing our decisions in Rust v. Sullivan, 500 U. S. 173 (1991), Regan v. Taxation with Representation of Wash., 461 U. S. 540 (1983), and Widmar v. Vincent, 454 U. S. 263 *833 (1981), the University argues that content-based funding decisions are both inevitable and lawful. Were the reasoning of Lamb's Chapel to apply to funding decisions as well as to those involving access to facilities, it is urged, its holding \"would become a judicial juggernaut, constitutionalizing the ubiquitous content-based decisions that schools, colleges, and other government entities routinely make in the allocation of public funds.\" Brief for Respondents 16. To this end the University relies on our assurance in Widmar v. Vincent, supra. There, in the course of striking down a public university's exclusion of religious groups from use of school facilities made available to all other student groups, we stated: \"Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources.\" 454 U. S., at 276. The quoted language in Widmar was but a proper recognition of the principle that when the State is the speaker, it may make content-based choices. When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. In the same vein, in Rust v. Sullivan, supra, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. 500 U. S., at 194. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee. See id., at 196-200. *834 It does not follow, however, and we did not suggest in Widmar, that viewpoint-based restrictions are proper when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers. A holding that the University may not discriminate based on the viewpoint of private persons whose speech it facilitates does not restrict the University's own speech, which is controlled by different principles. See, e. g., Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990); Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270-272 (1988). For that reason, the University's reliance on Regan v. Taxation with Representation of Wash., supra, is inapposite as well. Regan involved a challenge to Congress' choice to grant tax deductions for contributions made to veterans' groups engaged in lobbying, while denying that favorable status to other charities which pursued lobbying efforts. Although acknowledging that the Government is not required to subsidize the exercise of fundamental rights, see 461 U. S., at 545-546, we reaffirmed the requirement of viewpoint neutrality in the Government's provision of financial benefits by observing that \"[t]he case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to `ai[m] at the suppression of dangerous ideas,' \" see id., at 548 (quoting Cammarano v. United States, 358 U. S. 498, 513 (1959), in turn quoting Speiser v. Randall, 357 U. S. 513, 519 (1958)). Regan relied on a distinction based on preferential treatment of certain speakers\u2014veterans' organizations\u2014and not a distinction based on the content or messages of those groups' speech. 461 U. S., at 548; cf. Perry Ed. Assn., 460 U. S., at 49. The University's regulation now before us, however, has a speech-based restriction as its sole rationale and operative principle. The distinction between the University's own favored message and the private speech of students is evident in the case before us. The University itself has taken steps to ensure *835 the distinction in the agreement each CIO must sign. See supra, at 824. The University declares that the student groups eligible for SAF support are not the University's agents, are not subject to its control, and are not its responsibility. Having offered to pay the third-party contractors on behalf of private speakers who convey their own messages, the University may not silence the expression of selected viewpoints. The University urges that, from a constitutional standpoint, funding of speech differs from provision of access to facilities because money is scarce and physical facilities are not. Beyond the fact that in any given case this proposition might not be true as an empirical matter, the underlying premise that the University could discriminate based on viewpoint if demand for space exceeded its availability is wrong as well. The government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity. Had the meeting rooms in Lamb's Chapel been scarce, had the demand been greater than the supply, our decision would have been no different. It would have been incumbent on the State, of course, to ration or allocate the scarce resources on some acceptable neutral principle; but nothing in our decision indicated that scarcity would give the State the right to exercise viewpoint discrimination that is otherwise impermissible. Vital First Amendment speech principles are at stake here. The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression. That danger is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition. See Healy v. James, 408 U. S. 169, 180-181 (1972); Keyishian v. Board of Regents of *836 Univ. of State of N. Y., 385 U. S. 589, 603 (1967); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957). In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. See generally R. Palmer & J. Colton, A History of the Modern World 39 (7th ed. 1992). The quality and creative power of student intellectual life to this day remains a vital measure of a school's influence and attainment. For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses. The Guideline invoked by the University to deny thirdparty contractor payments on behalf of WAP effects a sweeping restriction on student thought and student inquiry in the context of University sponsored publications. The prohibition on funding on behalf of publications that \"primarily promot[e] or manifes[t] a particular belie[f] in or about a deity or an ultimate reality,\" in its ordinary and commonsense meaning, has a vast potential reach. The term \"promotes\" as used here would comprehend any writing advocating a philosophic position that rests upon a belief in a deity or ultimate reality. See Webster's Third New International Dictionary 1815 (1961) (defining \"promote\" as \"to contribute to the growth, enlargement, or prosperity of: further, encourage\"). And the term \"manifests\" would bring within the scope of the prohibition any writing that is explicable as resting upon a premise that presupposes the existence of a deity or ultimate reality. See id., at 1375 (defining \"manifest\" as \"to show plainly: make palpably evident or certain by showing or displaying\"). Were the prohibition applied with much vigor at all, it would bar funding of essays by hypothetical student contributors named Plato, Spinoza, and Descartes. And if the regulation covers, as the University *837 says it does, see Tr. of Oral Arg. 18-19, those student journalistic efforts that primarily manifest or promote a belief that there is no deity and no ultimate reality, then undergraduates named Karl Marx, Bertrand Russell, and JeanPaul Sartre would likewise have some of their major essays excluded from student publications. If any manifestation of beliefs in first principles disqualifies the writing, as seems to be the case, it is indeed difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Plato could contrive perhaps to submit an acceptable essay on making pasta or peanut butter cookies, provided he did not point out their (necessary) imperfections. Based on the principles we have discussed, we hold that the regulation invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech guaranteed by the First Amendment. It remains to be considered whether the violation following from the University's action is excused by the necessity of complying with the Constitution's prohibition against state establishment of religion. We turn to that question.\nIII Before its brief on the merits in this Court, the University had argued at all stages of the litigation that inclusion of WAP's contractors in SAF funding authorization would violate the Establishment Clause. Indeed, that is the ground on which the University prevailed in the Court of Appeals. We granted certiorari on this question: \"Whether the Establishment Clause compels a state university to exclude an otherwise eligible student publication from participation in the student activities fund, solely on the basis of its religious viewpoint, where such exclusion would violate the Speech and Press Clauses if the viewpoint of the publication were nonreligious.\" Pet. for Cert. i. The University now seems to have abandoned this position, contending that \"[t]he fundamental *838 objection to petitioners' argument is not that it implicates the Establishment Clause but that it would defeat the ability of public education at all levels to control the use of public funds.\" Brief for Respondents 29; see id., at 27-29, and n. 17; Tr. of Oral Arg. 14. That the University itself no longer presses the Establishment Clause claim is some indication that it lacks force; but as the Court of Appeals rested its judgment on the point and our dissenting colleagues would find it determinative, it must be addressed. The Court of Appeals ruled that withholding SAF support from Wide Awake contravened the Speech Clause of the First Amendment, but proceeded to hold that the University's action was justified by the necessity of avoiding a violation of the Establishment Clause, an interest it found compelling. 18 F. 3d, at 281. Recognizing that this Court has regularly \"sanctioned awards of direct nonmonetary benefits to religious groups where government has created open fora to which all similarly situated organizations are invited,\" id., at 286 (citing Widmar, 454 U. S., at 277), the Fourth Circuit asserted that direct monetary subsidization of religious organizations and projects is \"a beast of an entirely different color,\" 18 F. 3d, at 286. The court declared that the Establishment Clause would not permit the use of public funds to support \"`a specifically religious activity in an otherwise substantially secular setting.' \" Id., at 285 (quoting Hunt v. McNair, 413 U. S. 734, 743 (1973) (emphasis deleted)). It reasoned that because Wide Awake is \"a journal pervasively devoted to the discussion and advancement of an avowedly Christian theological and personal philosophy,\" the University's provision of SAF funds for its publication would \"send an unmistakably clear signal that the University of Virginia supports Christian values and wishes to promote the wide promulgation of such values.\" 18 F. 3d, at 286. If there is to be assurance that the Establishment Clause retains its force in guarding against those governmental actions it was intended to prohibit, we must in each case inquire *839 first into the purpose and object of the governmental action in question and then into the practical details of the program's operation. Before turning to these matters, however, we can set forth certain general principles that must bear upon our determination. A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion. We have decided a series of cases addressing the receipt of government benefits where religion or religious views are implicated in some degree. The first case in our modern Establishment Clause jurisprudence was Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947). There we cautioned that in enforcing the prohibition against laws respecting establishment of religion, we must \"be sure that we do not inadvertently prohibit [the government] from extending its general state law benefits to all its citizens without regard to their religious belief.\" Id., at 16. We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 704 (1994) (Souter, J.) (\"[T]he principle is well grounded in our case law [and] we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges\"); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 487-488 (1986); Mueller v. Allen, 463 U. S. 388, 398-399 (1983); Widmar, supra, at 274\u2014 275. More than once have we rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design. See Lamb's Chapel, 508 U. S., at 393-394; Mergens, 496 U. S., at 248, 252; Widmar, supra, at 274-275. *840 The governmental program here is neutral toward religion. There is no suggestion that the University created it to advance religion or adopted some ingenious device with the purpose of aiding a religious cause. The object of the SAF is to open a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life. The University's SAF Guidelines have a separate classification for, and do not make third-party payments on behalf of, \"religious organizations,\" which are those \"whose purpose is to practice a devotion to an acknowledged ultimate reality or deity.\" Pet. for Cert. 66a. The category of support here is for \"student news, information, opinion, entertainment, or academic communications media groups,\" of which Wide Awake was 1 of 15 in the 1990 school year. WAP did not seek a subsidy because of its Christian editorial viewpoint; it sought funding as a student journal, which it was. The neutrality of the program distinguishes the student fees from a tax levied for the direct support of a church or group of churches. A tax of that sort, of course, would run contrary to Establishment Clause concerns dating from the earliest days of the Republic. The apprehensions of our predecessors involved the levying of taxes upon the public for the sole and exclusive purpose of establishing and supporting specific sects. The exaction here, by contrast, is a student activity fee designed to reflect the reality that student life in its many dimensions includes the necessity of wide-ranging speech and inquiry and that student expression is an integral part of the University's educational mission. The fee is mandatory, and we do not have before us the question whether an objecting student has the First Amendment right to demand a pro rata return to the extent the fee is expended for speech to which he or she does not subscribe. See Keller v. State Bar of Cal., 496 U. S. 1, 15-16 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235-236 (1977). We must treat it, then, as an exaction upon the students. *841 But the $14 paid each semester by the students is not a general tax designed to raise revenue for the University. See United States v. Butler, 297 U. S. 1, 61 (1936) (\"A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the Government\"); see also Head Money Cases, 112 U. S. 580, 595\u2014 596 (1884). The SAF cannot be used for unlimited purposes, much less the illegitimate purpose of supporting one religion. Much like the arrangement in Widmar, the money goes to a special fund from which any group of students with CIO status can draw for purposes consistent with the University's educational mission; and to the extent the student is interested in speech, withdrawal is permitted to cover the whole spectrum of speech, whether it manifests a religious view, an antireligious view, or neither. Our decision, then, cannot be read as addressing an expenditure from a general tax fund. Here, the disbursements from the fund go to private contractors for the cost of printing that which is protected under the Speech Clause of the First Amendment. This is a far cry from a general public assessment designed and effected to provide financial support for a church. Government neutrality is apparent in the State's overall scheme in a further meaningful respect. The program respects the critical difference \"between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.\" Mergens, supra, at 250 (opinion of O'Connor, J.). In this case, \"the government has not fostered or encouraged\" any mistaken impression that the student newspapers speak for the University. Capitol Square Review and Advisory Bd. v. Pinette, ante, at 766. The University has taken pains to disassociate itself from the private speech involved in this case. The Court of Appeals' apparent concern that Wide Awake's religious orientation would be attributed to the University is not a plausible fear, and there is no real likelihood that the *842 speech in question is being either endorsed or coerced by the State, see Lee v. Weisman, 505 U. S. 577, 587 (1992); Witters, supra, at 489 (citing Lynch v. Donnelly, 465 U. S. 668, 688 (1984) (O'Connor, J., concurring)); see also Witters, supra, at 493 (O'Connor, J., concurring in part and concurring in judgment) (citing Lynch, supra, at 690 (O'Connor, J., concurring)). The Court of Appeals (and the dissent) are correct to extract from our decisions the principle that we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions, citing Roemer v. Board of Public Works of Md., 426 U. S. 736, 747 (1976); Bowen v. Kendrick, 487 U. S. 589, 614-615 (1988); Hunt v. McNair, 413 U. S., at 742; Tilton v. Richardson, 403 U. S. 672, 679-680 (1971); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968). The error is not in identifying the principle, but in believing that it controls this case. Even assuming that WAP is no different from a church and that its speech is the same as the religious exercises conducted in Widmar (two points much in doubt), the Court of Appeals decided a case that was, in essence, not before it, and the dissent would have us do the same. We do not confront a case where, even under a neutral program that includes nonsectarian recipients, the government is making direct money payments to an institution or group that is engaged in religious activity. Neither the Court of Appeals nor the dissent, we believe, takes sufficient cognizance of the undisputed fact that no public funds flow directly to WAP's coffers. It does not violate the Establishment Clause for a public university to grant access to its facilities on a religionneutral basis to a wide spectrum of student groups, including groups that use meeting rooms for sectarian activities, accompanied by some devotional exercises. See Widmar, 454 U. S., at 269; Mergens, 496 U. S., at 252. This is so even where the upkeep, maintenance, and repair of the facilities *843 attributed to those uses are paid from a student activities fund to which students are required to contribute. Widmar, supra, at 265. The government usually acts by spending money. Even the provision of a meeting room, as in Mergens and Widmar, involved governmental expenditure, if only in the form of electricity and heating or cooling costs. The error made by the Court of Appeals, as well as by the dissent, lies in focusing on the money that is undoubtedly expended by the government, rather than on the nature of the benefit received by the recipient. If the expenditure of governmental funds is prohibited whenever those funds pay for a service that is, pursuant to a religion-neutral program, used by a group for sectarian purposes, then Widmar, Mergens, and Lamb's Chapel would have to be overruled. Given our holdings in these cases, it follows that a public university may maintain its own computer facility and give student groups access to that facility, including the use of the printers, on a religion neutral, say first-come-first-served, basis. If a religious student organization obtained access on that religion-neutral basis and used a computer to compose or a printer or copy machine to print speech with a religious content or viewpoint, the State's action in providing the group with access would no more violate the Establishment Clause than would giving those groups access to an assembly hall. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Widmar, supra; Mergens, supra. There is no difference in logic or principle, and no difference of constitutional significance, between a school using its funds to operate a facility to which students have access, and a school paying a third-party contractor to operate the facility on its behalf. The latter occurs here. The University provides printing services to a broad spectrum of student newspapers qualified as CIO's by reason of their officers and membership. Any benefit to religion is incidental to the government's provision of secular services for secular *844 purposes on a religion-neutral basis. Printing is a routine, secular, and recurring attribute of student life. By paying outside printers, the University in fact attains a further degree of separation from the student publication, for it avoids the duties of supervision, escapes the costs of upkeep, repair, and replacement attributable to student use, and has a clear record of costs. As a result, and as in Widmar, the University can charge the SAF, and not the taxpayers as a whole, for the discrete activity in question. It would be formalistic for us to say that the University must forfeit these advantages and provide the services itself in order to comply with the Establishment Clause. It is, of course, true that if the State pays a church's bills it is subsidizing it, and we must guard against this abuse. That is not a danger here, based on the considerations we have advanced and for the additional reason that the student publication is not a religious institution, at least in the usual sense of that term as used in our case law, and it is not a religious organization as used in the University's own regulations. It is instead a publication involved in a pure forum for the expression of ideas, ideas that would be both incomplete and chilled were the Constitution to be interpreted to require that state officials and courts scan the publication to ferret out views that principally manifest a belief in a divine being. Were the dissent's view to become law, it would require the University, in order to avoid a constitutional violation, to scrutinize the content of student speech, lest the expression in question\u2014speech otherwise protected by the Constitution\u2014contain too great a religious content. The dissent, in fact, anticipates such censorship as \"crucial\" in distinguishing between \"works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve.\" Post, at 896. That eventuality raises the specter of governmental censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy. To impose that *845 standard on student speech at a university is to imperil the very sources of free speech and expression. As we recognized in Widmar, official censorship would be far more inconsistent with the Establishment Clause's dictates than would governmental provision of secular printing services on a religion-blind basis. \"[T]he dissent fails to establish that the distinction [between `religious' speech and speech `about' religion] has intelligible content. There is no indication when `singing hymns, reading scripture, and teaching biblical principles' cease to be `singing, teaching, and reading'\u2014all apparently forms of `speech,' despite their religious subject matter\u2014and become unprotected `worship.' . . . \"[E]ven if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university\u2014and ultimately the courts\u2014to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E. g., Walz v. Tax Comm'n of City of New York, 397 U. S. 664 (1970).\" 454 U. S., at 269-270, n. 6 (citations omitted).\n* * * To obey the Establishment Clause, it was not necessary for the University to deny eligibility to student publications because of their viewpoint. The neutrality commanded of the State by the separate Clauses of the First Amendment was compromised by the University's course of action. The viewpoint discrimination inherent in the University's regulation required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief. That course of action was a denial of the right of free speech and would risk *846 fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University's honoring its duties under the Free Speech Clause. The judgment of the Court of Appeals must be, and is, reversed. It is so ordered. Justice O'Connor, concurring. \"We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or do not worship.\" Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 714 (1994) (O'Connor, J., concurring in part and concurring in judgment). This insistence on government neutrality toward religion explains why we have held that schools may not discriminate against religious groups by denying them equal access to facilities that the schools make available to all. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Widmar v. Vincent, 454 U. S. 263 (1981). Withholding access would leave an impermissible perception that religious activities are disfavored: \"[T]he message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.\" Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 248 (1990) (plurality opinion). \"The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion.\" Kiryas Joel, supra, at 717 (O'Connor, J.). Neutrality, in both form and effect, is one hallmark of the Establishment Clause. As Justice Souter demonstrates, however, post, at 868\u2014 872 (dissenting opinion), there exists another axiom in the history and precedent of the Establishment Clause. \"Public *847 funds may not be used to endorse the religious message.\" Bowen v. Kendrick, 487 U. S. 589, 642 (1988) (Blackmun, J., dissenting); see also id. , at 622 (O'Connor, J., concurring). Our cases have permitted some government funding of secular functions performed by sectarian organizations. See, e. g., id., at 617 (funding for sex education); Roemer v. Board of Public Works of Md., 426 U. S. 736, 741 (1976) (cash grant to colleges not to be used for \"sectarian purposes\"); Bradfield v. Roberts, 175 U. S. 291, 299-300 (1899) (funding of health care for indigent patients). These decisions, however, provide no precedent for the use of public funds to finance religious activities. This case lies at the intersection of the principle of government neutrality and the prohibition on state funding of religious activities. It is clear that the University has established a generally applicable program to encourage the free exchange of ideas by its students, an expressive marketplace that includes some 15 student publications with predictably divergent viewpoints. It is equally clear that petitioners' viewpoint is religious and that publication of Wide Awake is a religious activity, under both the University's regulation and a fair reading of our precedents. Not to finance Wide Awake, according to petitioners, violates the principle of neutrality by sending a message of hostility toward religion. To finance Wide Awake, argues the University, violates the prohibition on direct state funding of religious activities. When two bedrock principles so conflict, understandably neither can provide the definitive answer. Reliance on categorical platitudes is unavailing. Resolution instead depends on the hard task of judging\u2014sifting through the details and determining whether the challenged program offends the Establishment Clause. Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case. See Lee v. Weisman, 505 U. S. 577, 598 (1992) (\"Our jurisprudence in this area is of necessity one of line-drawing\"). As Justice Holmes observed in a different *848 context: \"Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law. Day and night, youth and age are only types.\" Irwin v. Gavit, 268 U. S. 161, 168 (1925) (citation omitted). In Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), for example, we unanimously held that the State may, through a generally applicable financial aid program, pay a blind student's tuition at a sectarian theological institution. The Court so held, however, only after emphasizing that \"vocational assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice.\" Id., at 487. The benefit to religion under the program, therefore, is akin to a public servant contributing her government paycheck to the church. Ibid. We thus resolved the conflict between the neutrality principle and the funding prohibition, not by permitting one to trump the other, but by relying on the elements of choice peculiar to the facts of that case: \"The aid to religion at issue here is the result of petitioner's private choice. No reasonable observer is likely to draw from the facts before us an inference that the State itself is endorsing a religious practice or belief.\" Id., at 493 (O'Connor, J., concurring in part and concurring in judgment). See also Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 10-11 (1993). The need for careful judgment and fine distinctions presents itself even in extreme cases. Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), provided perhaps the strongest exposition of the no-funding principle: \"No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.\" Id., at 16. Yet the Court approved the use of public funds, in a general program, to reimburse parents for their children's bus fares to attend Catholic schools. Id., at 17-18. *849 Although some would cynically dismiss the Court's disposition as inconsistent with its protestations, see id., at 19 (Jackson, J., dissenting) (\"[T]he most fitting precedent is that of Julia who, according to Byron's reports, `whispering \"I will ne'er consent,\"\u2014consented' \"), the decision reflected the need to rely on careful judgment\u2014not simple categories\u2014when two principles, of equal historical and jurisprudential pedigree, come into unavoidable conflict. So it is in this case. The nature of the dispute does not admit of categorical answers, nor should any be inferred from the Court's decision today, see ante, at 838-839. Instead, certain considerations specific to the program at issue lead me to conclude that by providing the same assistance to Wide Awake that it does to other publications, the University would not be endorsing the magazine's religious perspective. First, the student organizations, at the University's insistence, remain strictly independent of the University. The University's agreement with the Contracted Independent Organizations (CIO)\u2014i. e., student groups\u2014provides: \"The University is a Virginia public corporation and the CIO is not part of that corporation, but rather exists and operates independently of the University. . . . \"The parties understand and agree that this Agreement is the only source of any control the University may have over the CIO or its activities . . . .\" App. 27. And the agreement requires that student organizations include in every letter, contract, publication, or other written materials the following disclaimer: \"Although this organization has members who are University of Virginia students (faculty) (employees), the organization is independent of the corporation which is the University and which is not responsible for the organization's contracts, acts or omissions.\" Id., at 28. *850 Any reader of Wide Awake would be on notice of the publication's independence from the University. Cf. Widmar v. Vincent, 454 U. S., at 274, n. 14. Second, financial assistance is distributed in a manner that ensures its use only for permissible purposes. A student organization seeking assistance must submit disbursement requests; if approved, the funds are paid directly to the third-party vendor and do not pass through the organization's coffers. This safeguard accompanying the University's financial assistance, when provided to a publication with a religious viewpoint such as Wide Awake, ensures that the funds are used only to further the University's purpose in maintaining a free and robust marketplace of ideas, from whatever perspective. This feature also makes this case analogous to a school providing equal access to a generally available printing press (or other physical facilities), ante, at 843, and unlike a block grant to religious organizations. Third, assistance is provided to the religious publication in a context that makes improbable any perception of government endorsement of the religious message. Wide Awake does not exist in a vacuum. It competes with 15 other magazines and newspapers for advertising and readership. The widely divergent viewpoints of these many purveyors of opinion, all supported on an equal basis by the University, significantly diminishes the danger that the message of any one publication is perceived as endorsed by the University. Besides the general news publications, for example, the University has provided support to The Yellow Journal, a humor magazine that has targeted Christianity as a subject of satire, and Al-Salam, a publication to \"promote a better understanding of Islam to the University Community,\" App. 92. Given this wide array of nonreligious, antireligious and competing religious viewpoints in the forum supported by the University, any perception that the University endorses one particular viewpoint would be illogical. This is not the harder case where religious speech threatens *851 to dominate the forum. Cf. Capitol Square Review and Advisory Bd. v. Pinette, ante, at 777 (O'Connor, J., concurring in part and concurring in judgment); Mergens, 496 U. S., at 275. Finally, although the question is not presented here, I note the possibility that the student fee is susceptible to a Free Speech Clause challenge by an objecting student that she should not be compelled to pay for speech with which she disagrees. See, e. g., Keller v. State Bar of Cal., 496 U. S. 1, 15 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209, 236 (1977). There currently exists a split in the lower courts as to whether such a challenge would be successful. Compare Hays County Guardian v. Supple, 969 F. 2d 111, 123 (CA5 1992), cert. denied, 506 U. S. 1087 (1993); Kania v. Fordham, 702 F. 2d 475, 480 (CA4 1983); Good v. Associated Students of Univ. of Wash., 86 Wash. 2d 94, 105-106, 542 P. 2d 762, 769 (1975) (en banc), with Smith v. Regents of Univ. of Cal., 4 Cal. 4th 843, 863-864, 844 P. 2d 500, 513-514, cert. denied, 510 U. S. 863 (1993). While the Court does not resolve the question here, see ante, at 840, the existence of such an optout possibility not available to citizens generally, see Abood, supra, at 259, n. 13 (Powell, J., concurring in judgment), provides a potential basis for distinguishing proceeds of the student fees in this case from proceeds of the general assessments in support of religion that lie at the core of the prohibition against religious funding, see ante, at 840-841; post, at 852-855 (Thomas, J., concurring); post, at 868-872 (Souter, J., dissenting), and from government funds generally. Unlike moneys dispensed from state or federal treasuries, the Student Activities Fund is collected from students who themselves administer the fund and select qualifying recipients only from among those who originally paid the fee. The government neither pays into nor draws from this common pool, and a fee of this sort appears conducive to granting individual students proportional refunds. The Student Activities Fund, then, represents not government resources, *852 whether derived from tax revenue, sales of assets, or otherwise, but a fund that simply belongs to the students. The Court's decision today therefore neither trumpets the supremacy of the neutrality principle nor signals the demise of the funding prohibition in Establishment Clause jurisprudence. As I observed last Term, \"[e]xperience proves that the Establishment Clause, like the Free Speech Clause, cannot easily be reduced to a single test.\" Kiryas Joel, 512 U. S., at 720 (opinion concurring in part and concurring in judgment). When bedrock principles collide, they test the limits of categorical obstinacy and expose the flaws and dangers of a Grand Unified Theory that may turn out to be neither grand nor unified. The Court today does only what courts must do in many Establishment Clause cases\u2014focus on specific features of a particular government action to ensure that it does not violate the Constitution. By withholding from Wide Awake assistance that the University provides generally to all other student publications, the University has discriminated on the basis of the magazine's religious viewpoint in violation of the Free Speech Clause. And particular features of the University's program\u2014such as the explicit disclaimer, the disbursement of funds directly to third-party vendors, the vigorous nature of the forum at issue, and the possibility for objecting students to opt out\u2014 convince me that providing such assistance in this case would not carry the danger of impermissible use of public funds to endorse Wide Awake's religious message. Subject to these comments, I join the opinion of the Court. Justice Thomas, concurring. I agree with the Court's opinion and join it in full, but I write separately to express my disagreement with the historical analysis put forward by the dissent. Although the dissent starts down the right path in consulting the original meaning of the Establishment Clause, its misleading application of history yields a principle that is inconsistent with our Nation's long tradition of allowing religious adherents *853 to participate on equal terms in neutral government programs. Even assuming that the Virginia debate on the so-called \"Assessment Controversy\" was indicative of the principles embodied in the Establishment Clause, this incident hardly compels the dissent's conclusion that government must actively discriminate against religion. The dissent's historical discussion glosses over the fundamental characteristic of the Virginia assessment bill that sparked the controversy: The assessment was to be imposed for the support of clergy in the performance of their function of teaching religion. Thus, the \"Bill Establishing a Provision for Teachers of the Christian Religion\" provided for the collection of a specific tax, the proceeds of which were to be appropriated \"by the Vestries, Elders, or Directors of each religious society . . . to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever.\" See Everson v. Board of Ed. of Ewing, 330 U. S. 1, 74 (1947) (appendix to dissent of Rutledge, J.).[1] *854 James Madison's Memorial and Remonstrance Against Religious Assessments (hereinafter Madison's Remonstrance) must be understood in this context. Contrary to the dissent's suggestion, Madison's objection to the assessment bill did not rest on the premise that religious entities may never participate on equal terms in neutral government programs. Nor did Madison embrace the argument that forms the linchpin of the dissent: that monetary subsidies are constitutionally different from other neutral benefits programs. Instead, Madison's comments are more consistent with the neutrality principle that the dissent inexplicably discards. According to Madison, the Virginia assessment was flawed because it \"violate[d] that equality which ought to be the basis of every law.\" Madison's Remonstrance \u00b6 4, reprinted in Everson, supra, at 66 (appendix to dissent of Rutledge, J.). The assessment violated the \"equality\" principle not because *855 it allowed religious groups to participate in a generally available government program, but because the bill singled out religious entities for special benefits. See ibid. (arguing that the assessment violated the equality principle \"by subjecting some to peculiar burdens\" and \"by granting to others peculiar exemptions\"). Legal commentators have disagreed about the historical lesson to take from the Assessment Controversy. For some, the experience in Virginia is consistent with the view that the Framers saw the Establishment Clause simply as a prohibition on governmental preferences for some religious faiths over others. See R. Cord, Separation of Church and State: Historical Fact and Current Fiction 20-23 (1982); Smith, Getting Off on the Wrong Foot and Back on Again: A Reexamination of the History of the Framing of the Religion Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569, 590-591 (1984). Other commentators have rejected this view, concluding that the Establishment Clause forbids not only government preferences for some religious sects over others, but also government preferences for religion over irreligion. See, e. g., Laycock, \"Nonpreferential\" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875 (1986). I find much to commend the former view. Madison's focus on the preferential nature of the assessment was not restricted to the fourth paragraph of the Remonstrance discussed above. The funding provided by the Virginia assessment was to be extended only to Christian sects, and the Remonstrance seized on this defect: \"Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.\" Madison's Remonstrance \u00b6 3, reprinted in Everson, supra, at 65. *856 In addition to the third and fourth paragraphs of the Remonstrance, \"Madison's seventh, ninth, eleventh, and twelfth arguments all speak, in some way, to the same intolerance, bigotry, unenlightenment, and persecution that had generally resulted from previous exclusive religious establishments.\" Cord, supra, at 21. The conclusion that Madison saw the principle of nonestablishment as barring governmental preferences for particular religious faiths seems especially clear in light of statements he made in the more relevant context of the House debates on the First Amendment. See Wallace v. Jaffree, 472 U. S. 38, 98 (1985) (Rehnquist, J., dissenting) (Madison's views \"as reflected by actions on the floor of the House in 1789, [indicate] that he saw the [First] Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects,\" but not \"as requiring neutrality on the part of government between religion and irreligion\"). Moreover, even if more extreme notions of the separation of church and state can be attributed to Madison, many of them clearly stem from \"arguments reflecting the concepts of natural law, natural rights, and the social contract between government and a civil society,\" Cord, supra, at 22, rather than the principle of nonestablishment in the Constitution. In any event, the views of one man do not establish the original understanding of the First Amendment. But resolution of this debate is not necessary to decide this case. Under any understanding of the Assessment Controversy, the history cited by the dissent cannot support the conclusion that the Establishment Clause \"categorically condemn[s] state programs directly aiding religious activity\" when that aid is part of a neutral program available to a wide array of beneficiaries. Post, at 875. Even if Madison believed that the principle of nonestablishment of religion precluded government financial support for religion per se (in the sense of government benefits specifically targeting religion), there is no indication that at the time of the framing *857 he took the dissent's extreme view that the government must discriminate against religious adherents by excluding them from more generally available financial subsidies.[2] In fact, Madison's own early legislative proposals cut against the dissent's suggestion. In 1776, when Virginia's Revolutionary Convention was drafting its Declaration of Rights, Madison prepared an amendment that would have disestablished the Anglican Church. This amendment (which went too far for the Convention and was not adopted) is not nearly as sweeping as the dissent's version of disestablishment; Madison merely wanted the Convention to declare that \"no man or class of men ought, on account of religion[,] to be invested with peculiar emoluments or privileges . . . .\" Madison's Amendments to the Declaration of Rights (May 29\u2014June 12, 1776), in 1 Papers of James Madison 174 (W. Hutchinson & W. Rachal eds. 1962) (emphasis added). Likewise, Madison's Remonstrance stressed that \"just government\" is \"best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.\" Madison's Remonstrance \u00b6 8, reprinted in Everson, 330 U. S., at 68; cf. Terrett v. Taylor, 9 Cranch 43, 49 (1815) (holding that the Virginia Constitution did not prevent the government from \"aiding . . . the votaries of *858 every sect to perform their own religious duties,\" or from \"establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead\"). Stripped of its flawed historical premise, the dissent's argument is reduced to the claim that our Establishment Clause jurisprudence permits neutrality in the context of access to government facilities but requires discrimination in access to government funds. The dissent purports to locate the prohibition against \"direct public funding\" at the \"heart\" of the Establishment Clause, see post, at 878, but this conclusion fails to confront historical examples of funding that date back to the time of the founding. To take but one famous example, both Houses of the First Congress elected chaplains, see S. Jour., 1st Cong., 1st Sess., 10 (1820 ed.); H. R. Jour., 1st Cong., 1st Sess., 26 (1826 ed.), and that Congress enacted legislation providing for an annual salary of $500 to be paid out of the Treasury, see Act of Sept. 22, 1789, ch. 17, \u00a7 4, 1 Stat. 70, 71. Madison himself was a member of the committee that recommended the chaplain system in the House. See H. R. Jour., at 11-12; 1 Annals of Cong. 891 (1789); Cord, Separation of Church and State: Historical Fact and Current Fiction, at 25. This same system of \"direct public funding\" of congressional chaplains has \"continued without interruption ever since that early session of Congress.\" Marsh v. Chambers, 463 U. S. 783, 788 (1983).[3] *859 The historical evidence of government support for religious entities through property tax exemptions is also overwhelming. As the dissent concedes, property tax exemptions for religious bodies \"have been in place for over 200 years without disruption to the interests represented by the Establishment Clause.\" Post, at 881, n. 7 (citing Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 676-680 (1970)).[4] In my view, the dissent's acceptance of this tradition puts to rest the notion that the Establishment Clause bars monetary aid to religious groups even when the aid is equally available to other groups. A tax exemption in many cases is economically and functionally indistinguishable from a direct monetary subsidy.[5] In one instance, the government relieves religious *860 entities (along with others) of a generally applicable tax; in the other, it relieves religious entities (along with others) of some or all of the burden of that tax by returning it in the form of a cash subsidy. Whether the benefit is provided at the front or back end of the taxation process, the financial aid to religious groups is undeniable. The analysis under the Establishment Clause must also be the same: \"Few concepts are more deeply embedded in the fabric of our national *861 life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise . . . .\"Walz, supra, at 676-677. Consistent application of the dissent's \"no-aid\" principle would require that \"`a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair.' \" Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8 (1993) (quoting Widmar v. Vincent, 454 U. S. 263, 274-275 (1981)). The dissent admits that \"evenhandedness may become important to ensuring that religious interests are not inhibited.\" Post, at 879, n. 5. Surely the dissent must concede, however, that the same result should obtain whether the government provides the populace with fire protection by reimbursing the costs of smoke detectors and overhead sprinkler systems or by establishing a public fire department. If churches may benefit on equal terms with other groups in the latter program\u2014that is, if a public fire department may extinguish fires at churches\u2014then they may also benefit on equal terms in the former program. Though our Establishment Clause jurisprudence is in hopeless disarray, this case provides an opportunity to reaffirm one basic principle that has enjoyed an uncharacteristic degree of consensus: The Clause does not compel the exclusion of religious groups from government benefits programs that are generally available to a broad class of participants. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Zobrest, supra; Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990); Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986); Mueller v. Allen, 463 U. S. 388 (1983); Widmar, supra. Under the dissent's view, however, the University of Virginia may provide neutral access to the University's own printing press, but it may not provide the same service when the press is owned by a third party. Not surprisingly, *862 the dissent offers no logical justification for this conclusion, and none is evident in the text or original meaning of the First Amendment. If the Establishment Clause is offended when religious adherents benefit from neutral programs such as the University of Virginia's Student Activities Fund, it must also be offended when they receive the same benefits in the form of in-kind subsidies. The constitutional demands of the Establishment Clause may be judged against either a baseline of \"neutrality\" or a baseline of \"no aid to religion,\" but the appropriate baseline surely cannot depend on the fortuitous circumstances surrounding the form of aid. The contrary rule would lead to absurd results that would jettison centuries of practice respecting the right of religious adherents to participate on neutral terms in a wide variety of governmentfunded programs. Our Nation's tradition of allowing religious adherents to participate in evenhanded government programs is hardly limited to the class of \"essential public benefits\" identified by the dissent. See post, at 879, n. 5. A broader tradition can be traced at least as far back as the First Congress, which ratified the Northwest Ordinance of 1787. See Act of Aug. 7, 1789, ch. 8, 1 Stat. 50. Article III of that famous enactment of the Confederation Congress had provided: \"Religion, morality, and knowledge . . . being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.\" Id., at 52, n. (a). Congress subsequently set aside federal lands in the Northwest Territory and other territories for the use of schools. See, e. g., Act of Mar. 3, 1803, ch. 21, \u00a7 1, 2 Stat. 225-226; Act of Mar. 26, 1804, ch. 35, \u00a7 5, 2 Stat. 279; Act of Feb. 15, 1811, ch. 14, \u00a7 10, 2 Stat. 621; Act of Apr. 18, 1818, ch. 67, \u00a7 6, 3 Stat. 430; Act of Apr. 20, 1818, ch. 126, \u00a7 2, 3 Stat. 467. Many of the schools that enjoyed the benefits of these land grants undoubtedly were church-affiliated sectarian institutions as there was no requirement that the schools be \"public.\" See *863 C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment, Formation and Early History of the First Amendment Religion Clauses 163 (1964). Nevertheless, early Congresses found no problem with the provision of such neutral benefits. See also id., at 174 (noting that \"almost universally[,] Americans from 1789 to 1825 accepted and practiced governmental aid to religion and religiously oriented educational institutions\"). Numerous other government benefits traditionally have been available to religious adherents on neutral terms. Several examples may be found in the work of early Congresses, including copyright protection for \"the author and authors of any map, chart, book or books,\" Act of May 31, 1790, ch. 15, \u00a7 1, 1 Stat. 124, and a privilege allowing \"every printer of newspapers [to] send one paper to each and every other printer of newspapers within the United States, free of postage,\" Act of Feb. 20, 1792, ch. 7,\u00a7 21, 1 Stat. 238. Neither of these laws made any exclusion for the numerous authors or printers who manifested a belief in or about a deity. Thus, history provides an answer for the constitutional question posed by this case, but it is not the one given by the dissent. The dissent identifies no evidence that the Framers intended to disable religious entities from participating on neutral terms in evenhanded government programs. The evidence that does exist points in the opposite direction and provides ample support for today's decision. Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting. The Court today, for the first time, approves direct funding of core religious activities by an arm of the State. It does so, however, only after erroneous treatment of some familiar principles of law implementing the First Amendment's Establishment and Speech Clauses, and by viewing the very funds in question as beyond the reach of the Establishment Clause's funding restrictions as such. Because there is no *864 warrant for distinguishing among public funding sources for purposes of applying the First Amendment's prohibition of religious establishment, I would hold that the University's refusal to support petitioners' religious activities is compelled by the Establishment Clause. I would therefore affirm.\nI The central question in this case is whether a grant from the Student Activities Fund to pay Wide Awake's printing expenses would violate the Establishment Clause. Although the Court does not dwell on the details of Wide Awake's message, it recognizes something sufficiently religious in the publication to demand Establishment Clause scrutiny. Although the Court places great stress on the eligibility of secular as well as religious activities for grants from the Student Activities Fund, it recognizes that such evenhanded availability is not by itself enough to satisfy constitutional requirements for any aid scheme that results in a benefit to religion. Ante, at 839; see also ante, at 846-848 (O'Connor, J., concurring). Something more is necessary to justify any religious aid. Some Members of the Court, at least, may think the funding permissible on a view that it is indirect, since the money goes to Wide Awake's printer, not through Wide Awake's own checking account. The Court's principal reliance, however, is on an argument that providing religion with economically valuable services is permissible on the theory that services are economically indistinguishable from religious access to governmental speech forums, which sometimes is permissible. But this reasoning would commit the Court to approving direct religious aid beyond anything justifiable for the sake of access to speaking forums. The Court implicitly recognizes this in its further attempt to circumvent the clear bar to direct governmental aid to religion. Different Members of the Court seek to avoid this bar in different ways. The opinion of the Court makes the novel assumption that only direct aid financed with tax *865 revenue is barred, and draws the erroneous conclusion that the involuntary Student Activities Fee is not a tax. I do not read Justice O'Connor's opinion as sharing that assumption; she places this Student Activities Fund in a category of student funding enterprises from which religious activities in public universities may benefit, so long as there is no consequent endorsement of religion. The resulting decision is in unmistakable tension with the accepted law that the Court continues to avow.\nA The Court's difficulties will be all the more clear after a closer look at Wide Awake than the majority opinion affords. The character of the magazine is candidly disclosed on the opening page of the first issue, where the editor-in-chief announces Wide Awake's mission in a letter to the readership signed, \"Love in Christ\": it is \"to challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means.\" App. 45. The masthead of every issue bears St. Paul's exhortation, that \"[t]he hour has come for you to awake from your slumber, because our salvation is nearer now than when we first believed. Romans 13:11.\" Each issue of Wide Awake contained in the record makes good on the editor's promise and echoes the Apostle's call to accept salvation: \"The only way to salvation through Him is by confessing and repenting of sin. It is the Christian's duty to make sinners aware of their need for salvation. Thus, Christians must confront and condemn sin, or else they fail in their duty of love.\" Mourad & Prince, A Love\/Hate Relationship, Nov.\/Dec. 1990, p. 3. \"When you get to the final gate, the Lord will be handing out boarding passes, and He will examine your ticket. If, in your lifetime, you did not request a seat *866 on His Friendly Skies Flyer by trusting Him and asking Him to be your pilot, then you will not be on His list of reserved seats (and the Lord will know you not). You will not be able to buy a ticket then; no amount of money or desire will do the trick. You will be met by your chosen pilot and flown straight to Hell on an express jet (without air conditioning or toilets, of course).\" Ace, The Plane Truth, ibid. \"`Go into all the world and preach the good news to all creation.' (Mark 16:15) The Great Commission is the prime-directive for our lives as Christians . . . .\" Liu, Christianity and the Five-legged Stool, Sept.\/Oct. 1991, p. 3. \"The Spirit provides access to an intimate relationship with the Lord of the Universe, awakens our minds to comprehend spiritual truth and empowers us to serve as effective ambassadors for the Lord Jesus in our earthly lives.\" Buterbaugh, A Spiritual Advantage, Mar.\/Apr. 1991, p. 21. There is no need to quote further from articles of like tenor, but one could examine such other examples as religious poetry, see Macpherson, I Have Started Searching for Angels, Nov.\/Dec. 1990, p. 18; religious textual analysis and commentary, see Buterbaugh, Colossians 1:1-14: Abundant Life, id., at 20; Buterbaugh, John 14-16: A Spiritual Advantage, Mar.\/Apr., pp. 20-21; and instruction on religious practice, see Early, Thanksgiving and Prayer, Nov.\/Dec. 1990, p. 21 (providing readers with suggested prayers and posing contemplative questions about biblical texts); Early, Hope and Spirit, Mar.\/Apr. 1991, p. 21 (similar). Even featured essays on facially secular topics become platforms from which to call readers to fulfill the tenets of Christianity in their lives. Although a piece on racism has some general discussion on the subject, it proceeds beyond even the analysis and interpretation of biblical texts to conclude *867 with the counsel to take action because that is the Christian thing to do: \"God calls us to take the risks of voluntarily stepping out of our comfort zones and to take joy in the whole richness of our inheritance in the body of Christ. We must take the love we receive from God and share it with all peoples of the world. \"Racism is a disease of the heart, soul, and mind, and only when it is extirpated from the individual consciousness and replaced with the love and peace of God will true personal and communal healing begin.\" Liu, Rosenberger, Mourad, and Prince, \"Eracing\" Mistakes, Nov.\/Dec. 1990, p. 14. The same progression occurs in an article on eating disorders, which begins with descriptions of anorexia and bulimia and ends with this religious message: \"As thinking people who profess a belief in God, we must grasp firmly the truth, the reality of who we are because of Christ. Christ is the Bread of Life (John 6:35). Through Him, we are full. He alone can provide the ultimate source of spiritual fulfillment which permeates the emotional, psychological, and physical dimensions of our lives.\" Ferguson & Lassiter, From Calorie to Calvary, Sept.\/Oct. 1991, p. 14. This writing is no merely descriptive examination of religious doctrine or even of ideal Christian practice in confronting life's social and personal problems. Nor is it merely the expression of editorial opinion that incidentally coincides with Christian ethics and reflects a Christian view of human obligation. It is straightforward exhortation to enter into a relationship with God as revealed in Jesus Christ, and to satisfy a series of moral obligations derived from the teachings of Jesus Christ. These are not the words of \"student news, information, opinion, entertainment, or academic communicatio[n] . . .\" (in the language of the University's funding *868 criterion, App. to Pet. for Cert. 61a), but the words of \"challenge [to] Christians to live, in word and deed, according to the faith they proclaim and . . . to consider what a personal relationship with Jesus Christ means\" (in the language of Wide Awake's founder, App. 45). The subject is not the discourse of the scholar's study or the seminar room, but of the evangelist's mission station and the pulpit. It is nothing other than the preaching of the word, which (along with the sacraments) is what most branches of Christianity offer those called to the religious life. Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money. Evidence on the subject antedates even the Bill of Rights itself, as may be seen in the writings of Madison, whose authority on questions about the meaning of the Establishment Clause is well settled, e. g., Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 770, n. 28 (1973); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 13 (1947). Four years before the First Congress proposed the First Amendment, Madison gave his opinion on the legitimacy of using public funds for religious purposes, in the Memorial and Remonstrance Against Religious Assessments, which played the central role in ensuring the defeat of the Virginia tax assessment bill in 1786 and framed the debate upon which the Religion Clauses stand: \"Who does not see that . . . the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?\" James Madison, Memorial and Remonstrance Against Religious Assessments \u00b6 3 (hereinafter Madison's Remonstrance), reprinted in Everson, supra, at 65-66 (appendix to dissent of Rutledge, J.). *869 Madison wrote against a background in which nearly every Colony had exacted a tax for church support, Everson, supra, at 10, n. 8, the practice having become \"so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence,\" 330 U. S., at 11 (footnote omitted). Madison's Remonstrance captured the colonists' \"conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.\" Ibid.[1] Their sentiment, as expressed by Madison in Virginia, *870 led not only to the defeat of Virginia's tax assessment bill, but also directly to passage of the Virginia Bill for Establishing Religious Freedom, written by Thomas Jefferson. That *871 bill's preamble declared that \"to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical,\" Jefferson, A Bill for Establishing Religious Freedom, reprinted in 5 The Founder's Constitution 84 (P. Kurland & R. Lerner eds. 1987), and its text provided \"[t]hat no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever . . . ,\" id., at 85. See generally Everson, 330 U. S., at 13. We have \"previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.\" Ibid.; see also Laycock, \"Nonpreferential\" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 921, 923 (1986) (\"[I]f the debates of the 1780's support any proposition, it is that the Framers opposed government financial support for religion. . . . They did not substitute small taxes for large taxes; three pence was as bad as any larger sum. The principle was what mattered. With respect to money, religion was to be wholly voluntary. Churches either would support *872 themselves or they would not, but the government would neither help nor interfere\") (footnote omitted); T. Curry, The First Freedoms 217 (1986) (At the time of the framing of the Bill of Rights, \"[t]he belief that government assistance to religion, especially in the form of taxes, violated religious liberty had a long history\"); J. Choper, Securing Religious Liberty 16 (1995) (\"There is broad consensus that a central threat to the religious freedom of individuals and groups\u2014 indeed, in the judgment of many the most serious infringement upon religious liberty\u2014is posed by forcing them to pay taxes in support of a religious establishment or religious activities\") (footnotes omitted; internal quotation marks omitted).[2] *873 The principle against direct funding with public money is patently violated by the contested use of today's student activity fee.[3] Like today's taxes generally, the fee is Madison's threepence. The University exercises the power of the State to compel a student to pay it, see Jefferson's Preamble, supra, and the use of any part of it for the direct support of religious activity thus strikes at what we have repeatedly *874 held to be the heart of the prohibition on establishment. Everson, 330 U. S., at 15-16 (\"The `establishment of religion' clause . . . means at least this . . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion\"); see School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 385 (1985) (\"Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith\"); Committee for Public Ed. v. Nyquist, 413 U. S., at 780 (\"In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid\"); id., at 772 (\"Primary among those evils\" against which the Establishment Clause guards \"have been sponsorship, financial support, and active involvement of the sovereign in religious activity\") (citations and internal quotation marks omitted); see also Lee v. Weisman, 505 U. S. 577, 640 (1992) (Scalia, J., dissenting) (\"The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty\") (emphasis deleted); cf. Flast v. Cohen, 392 U. S. 83, 103-104 (1968) (holding that taxpayers have an adequate stake in the outcome of Establishment Clause litigation to satisfy Article III standing requirements, after stating that \"[o]ur history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general\"). The Court, accordingly, has never before upheld direct state funding of the sort of proselytizing published in Wide *875 Awake and, in fact, has categorically condemned state programs directly aiding religious activity, School Dist. v. Ball, supra, at 395 (striking programs providing secular instruction to nonpublic school students on nonpublic school premises because they are \"indistinguishable from the provision of a direct cash subsidy to the religious school that is most clearly prohibited under the Establishment Clause\"); Wolman v. Walter, 433 U. S. 229, 254 (1977) (striking field trip aid program because it constituted \"an impermissible direct aid to sectarian education\"); Meek v. Pittenger, 421 U. S. 349, 365 (1975) (striking material and equipment loan program to nonpublic schools because of the inability to \"channe[l] aid to the secular without providing direct aid to the sectarian\"); Committee for Public Ed. v. Nyquist, supra, at 774 (striking aid to nonpublic schools for maintenance and repair of facilities because \"[n]o attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes\"); Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472, 480 (1973) (striking aid to nonpublic schools for state-mandated tests because the State had failed to \"assure that the statesupported activity is not being used for religious indoctrination\"); Tilton v. Richardson, 403 U. S. 672, 683 (1971) (plurality opinion) (striking as insufficient a 20-year limit on prohibition for religious use in federal construction program for university facilities because unrestricted use even after 20 years \"is in effect a contribution of some value to a religious body\"); id., at 689 (Douglas, J., joined by Black, and Marshall, JJ., concurring in part and dissenting in part). Even when the Court has upheld aid to an institution performing both secular and sectarian functions, it has always made a searching enquiry to ensure that the institution kept the secular activities separate from its sectarian ones, with any direct aid flowing only to the former and never the latter. Bowen v. Kendrick, 487 U. S. 589, 614-615 (1988) (upholding *876 grant program for services related to premarital adolescent sexual relations on ground that funds cannot be \"used by the grantees in such a way as to advance religion\"); Roemer v. Board of Public Works of Md., 426 U. S. 736, 746-748, 755, 759-761 (1976) (plurality opinion) (upholding general aid program restricting uses of funds to secular activities only); Hunt v. McNair, 413 U. S. 734, 742-745 (1973) (upholding general revenue bond program excluding from participation facilities used for religious purposes); Tilton v. Richardson, supra, at 679-682 (plurality opinion) (upholding general aid program for construction of academic facilities as \"[t]here is no evidence that religion seeps into the use of any of these facilities\"); see Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 244-248 (1968) (upholding textbook loan program limited to secular books requested by individual students for secular educational purposes). Reasonable minds may differ over whether the Court reached the correct result in each of these cases, but their common principle has never been questioned or repudiated. \"Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed . . . indoctrination into the beliefs of a particular religious faith.\" School Dist. v. Ball, 473 U. S., at 385.\nB Why does the Court not apply this clear law to these clear facts and conclude, as I do, that the funding scheme here is a clear constitutional violation? The answer must be in part that the Court fails to confront the evidence set out in the preceding section. Throughout its opinion, the Court refers uninformatively to Wide Awake's \"Christian viewpoint,\" ante, at 826, or its \"religious perspective,\" ante, at 832, and in distinguishing funding of Wide Awake from the funding of a church, the Court maintains that \"[Wide Awake] is not a religious institution, at least in the usual sense,\" ante, at *877 844;[4] see also ante, at 826. The Court does not quote the magazine's adoption of Saint Paul's exhortation to awaken to the nearness of salvation, or any of its articles enjoining readers to accept Jesus Christ, or the religious verses, or the religious textual analyses, or the suggested prayers. And so it is easy for the Court to lose sight of what the University students and the Court of Appeals found so obvious, and to blanch the patently and frankly evangelistic character of the magazine by unrevealing allusions to religious points of view. Nevertheless, even without the encumbrance of detail from Wide Awake's actual pages, the Court finds something sufficiently religious about the magazine to require examination under the Establishment Clause, and one may therefore ask why the unequivocal prohibition on direct funding does not lead the Court to conclude that funding would be unconstitutional. The answer is that the Court focuses on a subsidiary body of law, which it correctly states but ultimately misapplies. That subsidiary body of law accounts for the Court's substantial attention to the fact that the University's funding scheme is \"neutral,\" in the formal sense that it makes funds available on an evenhanded basis to secular and sectarian applicants alike. Ante, at 839-842. While this is indeed true and relevant under our cases, it does not alone satisfy the requirements of the Establishment Clause, as the Court recognizes when it says that evenhandedness is only a \"significant factor\" in certain Establishment Clause analysis, not a dispositive one. Ante, at 839; see ante, at 840-841; see also ante, at 846-848 (O'Connor, J., concurring); ante, at 846 (\"Neutrality, in both form and effect, is one hallmark of the Establishment Clause\"); Capitol Square Review and Advisory Bd. v. Pinette, ante, at 777 (O'Connor, J., concurring *878 in part and concurring in judgment) (\"[T]he Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions. . . .[N]to all state policies are permissible under the Religion Clauses simply because they are neutral in form\"). This recognition reflects the Court's appreciation of two general rules: that whenever affirmative government aid ultimately benefits religion, the Establishment Clause requires some justification beyond evenhandedness on the government's part; and that direct public funding of core sectarian activities, even if accomplished pursuant to an evenhanded program, would be entirely inconsistent with the Establishment Clause and would strike at the very heart of the Clause's protection. See ante, at 842 (\"We do not confront a case where, even under a neutral program that includes nonsectarian recipients, the government is making direct money payments to an institution or group that is engaged in religious activity\"); ante, at 840-841, 844; see also ante, at 847 (O'Connor, J., concurring) (\"[Our] decisions . . . provide no precedent for the use of public funds to finance religious activities\"). In order to understand how the Court thus begins with sound rules but ends with an unsound result, it is necessary to explore those rules in greater detail than the Court does. As the foregoing quotations from the Court's opinion indicate, the relationship between the prohibition on direct aid and the requirement of evenhandedness when affirmative government aid does result in some benefit to religion reflects the relationship between basic rule and marginal criterion. At the heart of the Establishment Clause stands the prohibition against direct public funding, but that prohibition does not answer the questions that occur at the margins of the Clause's application. Is any government activity that provides any incidental benefit to religion likewise unconstitutional? Would it be wrong to put out fires in burning churches, wrong to pay the bus fares of students on the way *879 to parochial schools, wrong to allow a grantee of special education funds to spend them at a religious college? These are the questions that call for drawing lines, and it is in drawing them that evenhandedness becomes important. However the Court may in the past have phrased its line-drawing test, the question whether such benefits are provided on an evenhanded basis has been relevant, for the question addresses one aspect of the issue whether a law is truly neutral with respect to religion (that is, whether the law either \"advance[s] [or] inhibit[s] religion,\" County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592 (1989)). In Widmar v. Vincent, 454 U. S. 263, 274 (1981), for example, we noted that \"[t]he provision of benefits to [a] broad . . . spectrum of [religious and nonreligious] groups is an important index of secular effect.\" See also Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 702-705 (1994). In the doubtful cases (those not involving direct public funding), where there is initially room for argument about a law's effect, evenhandedness serves to weed out those laws that impermissibly advance religion by channelling aid to it exclusively. Evenhandedness is therefore a prerequisite to further enquiry into the constitutionality of a doubtful law,[5] but evenhandedness goes no further. It does not guarantee success under Establishment Clause scrutiny. Three cases permitting indirect aid to religion, Mueller v. Allen, 463 U. S. 388 (1983), Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), and Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993), are among the latest of those to illustrate this relevance of evenhandedness when advancement is not so obvious as to be patently unconstitutional. *880 Each case involved a program in which benefits given to individuals on a religion-neutral basis ultimately were used by the individuals, in one way or another, to support religious institutions.[6] In each, the fact that aid was distributed generally and on a neutral basis was a necessary condition for upholding the program at issue. Witters, supra, at 487-488; Mueller, supra, at 397-399; Zobrest, supra, at 10-11. But the significance of evenhandedness stopped there. We did not, in any of these cases, hold that satisfying the condition was sufficient, or dispositive. Even more importantly, we never held that evenhandedness might be sufficient to render direct aid to religion constitutional. Quite the contrary. Critical to our decisions in these cases was the fact that the aid was indirect; it reached religious institutions \"only as a result of the genuinely independent and private choices of aid recipients,\" Witters, supra, at 487; see also Mueller, supra, at 399-400; Zobrest, supra, at 10-13. In noting and relying on this particular feature of each of the programs at issue, we in fact reaffirmed the core prohibition on direct funding of religious activities. See Zobrest, supra, at 12-13; Witters, supra, at 487; see also Mueller, supra, at 399-400. Thus, our holdings in these cases were little more than extensions of the unremarkable proposition that \"a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier . . . .\" Witters, supra, at 486-487. Such \"attenuated financial benefit[s], ultimately controlled by the private choices of individual[s],\" *881 we have found, are simply not within the contemplation of the Establishment Clause's broad prohibition. Mueller, supra, at 400; see also Witters, supra, at 493 (opinion of O'Connor, J.).[7] *882 Evenhandedness as one element of a permissibly attenuated benefit is, of course, a far cry from evenhandedness as a sufficient condition of constitutionality for direct financial support of religious proselytization, and our cases have unsurprisingly repudiated any such attempt to cut the Establishment Clause down to a mere prohibition against unequal direct aid. See, e. g., Tilton v. Richardson, 403 U. S., at 682\u2014 684 (striking portion of general aid program providing grants for construction of college and university facilities to the extent program made possible the use of funds for sectarian activities);[8]Wolman v. Walter, 433 U. S., at 252-255 (striking funding of field trips for nonpublic school students, such as are \"provided to public school students in the district,\" because of unacceptable danger that state funds would be used to foster religion). And nowhere has the Court's adherence to the preeminence of the no-direct-funding principle over the principle of evenhandedness been as clear as in Bowen v. Kendrick, 487 U. S. 589 (1988). Bowen involved consideration of the Adolescent Family Life Act (AFLA), a federal grant program providing funds to institutions for counseling and educational services related to adolescent sexuality and pregnancy. At the time of the litigation, 141 grants had been awarded under the AFLA to *883 a broad array of both secular and religiously affiliated institutions. Id., at 597. In an Establishment Clause challenge to the Act brought by taxpayers and other interested parties, the District Court resolved the case on a pretrial motion for summary judgment, holding the AFLA program unconstitutional both on its face and also insofar as religious institutions were involved in receiving grants under the Act. When this Court reversed on the issue of facial constitutionality under the Establishment Clause, id., at 602-618, we said that there was \"no intimation in the statute that at some point, or for some grantees, religious uses are permitted.\" Id., at 614. On the contrary, after looking at the legislative history and applicable regulations, we found safeguards adequate to ensure that grants would not be \"used by . . . grantees in such a way as to advance religion.\" Id., at 615. With respect to the claim that the program was unconstitutional as applied, we remanded the case to the District Court \"for consideration of the evidence presented by appellees insofar as it sheds light on the manner in which the statute is presently being administered.\" Id., at 621. Specifically, we told the District Court, on remand, to \"consider. . . whether in particular cases AFLA aid has been used to fund `specifically religious activit[ies] in an otherwise substantially secular setting.' \" Ibid., quoting Hunt v. McNair, 413 U. S., at 743. In giving additional guidance to the District Court, we suggested that application of the Act would be unconstitutional if it turned out that aid recipients were using materials \"that have an explicitly religious content or are designed to inculcate the views of a particular religious faith.\" Bowen, 487 U. S., at 621. At no point in our opinion did we suggest that the breadth of potential recipients, or distribution on an evenhanded basis, could have justified the use of federal funds for religious activities, a position that would have made no sense after we had pegged the Act's facial constitutionality to our conclusion that advancement of religion was not inevitable. Justice O'Connor's separate *884 opinion in the case underscored just this point: \"I fully agree. . . that `[p]ublic funds may not be used to endorse the religious message.' [487 U. S.,] at 642 [(Blackmun, J., dissenting)]. . . .[A]ny use of public funds to promote religious doctrines violates the Establishment Clause.\" Id., at 622-623 (concurring opinion) (emphasis in original). Bowen was no sport; its pedigree was the line of Everson v. Board of Ed., 330 U. S., at 16-18, Board of Ed. v. Allen, 392 U. S., at 243-249, Tilton v. Richardson, supra, at 678\u2014 682, Hunt v. McNair, supra, at 742-745, and Roemer v. Board of Public Works of Md., 426 U. S., at 759-761. Each of these cases involved a general aid program that provided benefits to a broad array of secular and sectarian institutions on an evenhanded basis, but in none of them was that fact dispositive. The plurality opinion in Roemer made this point exactly: \"The Court has taken the view that a secular purpose and a facial neutrality may not be enough, if in fact the State is lending direct support to a religious activity. The State may not, for example, pay for what is actually a religious education, even though it purports to be paying for a secular one, and even though it makes its aid available to secular and religious institutions alike.\" 426 U. S., at 747 (opinion of Blackmun, J.). Instead, the central enquiry in each of these general aid cases, as in Bowen, was whether secular activities could be separated from the sectarian ones sufficiently to ensure that aid would flow to the secular alone. Witters, Mueller, and Zobrest expressly preserve the standard thus exhibited so often. Each of these cases explicitly distinguished the indirect aid in issue from contrasting examples in the line of cases striking down direct aid, and each thereby expressly preserved the core constitutional principle that direct aid to religion is impermissible. See Zobrest, 509 U. S., at 11-13 (distinguishing Meek v. Pittenger, 421 U. S. 349 (1975), and School Dist. v. Ball, 473 U. S. 373 (1985), and noting that \"`[t]he State may not grant aid to a *885 religious school, whether cash or in kind, where the effect of the aid is \"that of a direct subsidy to the religious school\"` \") (quoting Witters, 474 U. S., at 487); see also ibid.; Mueller, 463 U. S., at 399. It appears that the University perfectly understood the primacy of the no-direct-funding rule over the evenhandedness principle when it drew the line short of funding \"an[y] activity which primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality.\"[9] App. to Pet. for Cert. 66a.\n*886 C Since conformity with the marginal or limiting principle of evenhandedness is insufficient of itself to demonstrate the constitutionality of providing a government benefit that reaches religion, the Court must identify some further element in the funding scheme that does demonstrate its permissibility. For one reason or another, the Court's chosen element appears to be the fact that under the University's Guidelines, funds are sent to the printer chosen by Wide Awake, rather than to Wide Awake itself. Ante, at 842-844.\n1 If the Court's suggestion is that this feature of the funding program brings this case into line with Witters, Mueller, and Zobrest (discussed supra, at 879-881), the Court has misread those cases, which turned on the fact that the choice to benefit religion was made by a nonreligious third party standing between the government and a religious institution. See Witters, supra, at 487; see also Mueller, supra, at 399-400; Zobrest, supra, at 8-13. Here there is no thirdparty standing between the government and the ultimate religious beneficiary to break the circuit by its independent discretion to put state money to religious use. The printer, of course, has no option to take the money and use it to print a secular journal instead of Wide Awake. It only gets the money because of its contract to print a message of religious evangelism at the direction of Wide Awake, and it will receive payment only for doing precisely that. The formalism of distinguishing between payment to Wide Awake so it can pay an approved bill and payment of the approved bill itself cannot be the basis of a decision of constitutional law. If *887 this indeed were a critical distinction, the Constitution would permit a State to pay all the bills of any religious institution; [10] in fact, despite the Court's purported adherence to the no-direct-funding principle, the State could simply hand out credit cards to religious institutions and honor the monthly statements (so long as someone could devise an evenhanded umbrella to cover the whole scheme). Witters and the other cases cannot be distinguished out of existence this way.\n2 It is more probable, however, that the Court's reference to the printer goes to a different attempt to justify the payment. On this purported justification, the payment to the printer is significant only as the last step in an argument resting on the assumption that a public university may give a religious group the use of any of its equipment or facilities so long as secular groups are likewise eligible. The Court starts with the cases of Widmar v. Vincent, 454 U. S. 263 (1981), Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990), and Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993), in which religious groups were held to be entitled to access for speaking in government buildings open generally for that purpose. The Court reasons that the availability of a forum has economic value (the government built and maintained the building, while the speakers saved the rent for a hall); and that economically there is no difference between *888 the University's provision of the value of the room and the value, say, of the University's printing equipment; and that therefore the University must be able to provide the use of the latter. Since it may do that, the argument goes, it would be unduly formalistic to draw the line at paying for an outside printer, who simply does what the magazine's publishers could have done with the University's own printing equipment. Ante, at 843-844. The argument is as unsound as it is simple, and the first of its troubles emerges from an examination of the cases relied upon to support it. The common factual thread running through Widmar, Mergens, and Lamb's Chapel is that a governmental institution created a limited forum for the use of students in a school or college, or for the public at large, but sought to exclude speakers with religious messages. See generally Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45-46 (1983) (forum analysis). In each case the restriction was struck down either as an impermissible attempt to regulate the content of speech in an open forum (as in Widmar and Mergens ) or to suppress a particular religious viewpoint (as in Lamb's Chapel, see infra, at 897-898). In each case, to be sure, the religious speaker's use of the room passed muster as an incident of a plan to facilitate speech generally for a secular purpose, entailing neither secular entanglement with religion nor risk that the religious speech would be taken to be the speech of the government or that the government's endorsement of a religious message would be inferred. But each case drew ultimately on unexceptionable Speech Clause doctrine treating the evangelist, the Salvation Army, the millennia list, or the Hare Krishna like any other speaker in a public forum. It was the preservation of free speech on the model of the street corner that supplied the justification going beyond the requirement of evenhandedness. The Court's claim of support from these forum-access cases is ruled out by the very scope of their holdings. While *889 they do indeed allow a limited benefit to religious speakers, they rest on the recognition that all speakers are entitled to use the street corner (even though the State paves the roads and provides police protection to everyone on the street) and on the analogy between the public street corner and open classroom space. Thus, the Court found it significant that the classroom speakers would engage in traditional speech activities in these forums, too, even though the rooms (like street corners) require some incidental state spending to maintain them. The analogy breaks down entirely, however, if the cases are read more broadly than the Court wrote them, to cover more than forums for literal speaking. There is no traditional street corner printing provided by the government on equal terms to all comers, and the forum cases cannot be lifted to a higher plane of generalization without admitting that new economic benefits are being extended directly to religion in clear violation of the principle barring direct aid. The argument from economic equivalence thus breaks down on recognizing that the direct state aid it would support is not mitigated by the street corner analogy in the service of free speech. Absent that, the rule against direct aid stands as a bar to printing services as well as printers.\n3 It must, indeed, be a recognition of just this point that leads the Court to take a third tack, not in coming up with yet a third attempt at justification within the rules of existing case law, but in recasting the scope of the Establishment Clause in ways that make further affirmative justification unnecessary. Justice O'Connor makes a comprehensive analysis of the manner in which the activity fee is assessed and distributed. She concludes that the funding differs so sharply from religious funding out of governmental treasuries generally that it falls outside Establishment Clause's purview in the absence of a message of religious endorsement (which she finds not to be present). Ante, at 849-852 (concurring *890 opinion). The opinion of the Court concludes more expansively that the activity fee is not a tax, and then proceeds to find the aid permissible on the legal assumption that the bar against direct aid applies only to aid derived from tax revenue. I have already indicated why it is fanciful to treat the fee as anything but a tax, supra, at 873-874, and n. 3; see also ante, at 840 (noting mandatory nature of the fee), and will not repeat the point again. The novelty of the assumption that the direct aid bar only extends to aid derived from taxation, however, requires some response. Although it was a taxation scheme that moved Madison to write in the first instance, the Court has never held that government resources obtained without taxation could be used for direct religious support, and our cases on direct government aid have frequently spoken in terms in no way limited to tax revenues. E. g., School Dist. v. Ball, 473 U. S., at 385 (\"Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith\"); Nyquist, 413 U. S., at 780 (\"In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid\"); id., at 772 (\"Primary among those evils\" against which the Establishment Clause guards \"have been sponsorship, financial support, and active involvement of the sovereign in religious activity\") (citations and internal quotation marks omitted); see also T. Curry, The First Freedoms 217 (1986) (At the time of the framing of the Bill of Rights, \"[t]he belief that government assistance to religion, especially in the form of taxes, violated religious liberty had a long history\"). Allowing nontax funds to be spent on religion would, in fact, fly in the face of clear principle. Leaving entirely aside the question whether public nontax revenues could ever be used to finance religion without violating the endorsement *891 test, see County of Allegheny v. American Civil Liberties Union, 492 U. S., at 593-594, any such use of them would ignore one of the dual objectives of the Establishment Clause, which was meant not only to protect individuals and their republics from the destructive consequences of mixing government and religion, but to protect religion from a corrupting dependence on support from the Government. Engel v. Vitale, 370 U. S. 421, 431 (1962) (the Establishment Clause's \"first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion\"); Everson, 330 U. S., at 53 (Rutledge, J., dissenting) (\"The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting\") (citing Madison's Remonstrance \u00b6\u00b6 7, 8, reprinted in Everson, supra, at 63-72 (appendix to dissent of Rutledge, J.)); School Dist. of Abington Township v. Schempp, 374 U. S. 203, 259 (1963) (Brennan, J., concurring) (\"It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government\") (footnote omitted); Jefferson, A Bill for Establishing Religious Freedom, reprinted in 5 The Founder's Constitution, at 84-85. Since the corrupting effect of government support does not turn on whether the Government's own money comes from taxation or gift or the sale of public lands, the Establishment Clause could hardly relax its vigilance simply because tax revenue was not implicated. Accordingly, in the absence of a forthright disavowal, one can only assume that the Court does not mean to eliminate one half of the Establishment Clause's justification.\nD Nothing in the Court's opinion would lead me to end this enquiry into the application of the Establishment Clause any *892 differently from the way I began it. The Court is ordering an instrumentality of the State to support religious evangelism with direct funding. This is a flat violation of the Establishment Clause.\nII Given the dispositive effect of the Establishment Clause's bar to funding the magazine, there should be no need to decide whether in the absence of this bar the University would violate the Free Speech Clause by limiting funding as it has done. Widmar, 454 U. S., at 271 (university's compliance with its Establishment Clause obligations can be a compelling interest justifying speech restriction). But the Court's speech analysis may have independent application, and its flaws should not pass unremarked. The Court acknowledges, ante, at 832, the necessity for a university to make judgments based on the content of what may be said or taught when it decides, in the absence of unlimited amounts of money or other resources, how to honor its educational responsibilities. Widmar, supra, at 276; cf. Perry, 460 U. S., at 49 (subject matter and speaker identity distinctions \"are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property\"). Nor does the Court generally question that in allocating public funds a state university enjoys spacious discretion. Cf. Rust v. Sullivan, 500 U. S. 173, 194 (1991) (\"[W]hen the government appropriates public funds to establish a program it is entitled to define the limits of that program\"); Regan v. Taxation with Representation of Wash., 461 U. S. 540 (1983) (upholding government subsidization decision partial to one class of speaker).[11] Accordingly, *893 the Court recognizes that the relevant enquiry in this case is not merely whether the University bases its funding decisions on the subject matter of student speech; if there is an infirmity in the basis for the University's funding decision, it must be that the University is impermissibly distinguishing among competing viewpoints, ante, at 829-830, citing, inter alia, Perry, supra, at 46; see also Lamb's Chapel, 508 U. S., at 392-393 (subject-matter distinctions permissible in controlling access to limited public forum if reasonable and viewpoint neutral); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) (similar); Regan, supra, at 548.[12] The issue whether a distinction is based on viewpoint does not turn simply on whether a government regulation happens to be applied to a speaker who seeks to advance a particular viewpoint; the issue, of course, turns on whether the burden on speech is explained by reference to viewpoint. See Cornelius, supra, at 806 (\"[T]he government violates the First Amendment when it denies access to a speaker solely *894 to suppress the point of view he espouses on an otherwise includible subject\"). As when deciding whether a speech restriction is content based or content neutral, \"[t]he government's purpose is the controlling consideration.\" Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989); see also ibid. (content neutrality turns on, inter alia, whether a speech restriction is \"justified without reference to the content of the regulated speech\") (internal quotation marks and citations omitted) (emphasis deleted). So, for example, a city that enforces its excessive noise ordinance by pulling the plug on a rock band using a forbidden amplification system is not guilty of viewpoint discrimination simply because the band wishes to use that equipment to espouse antiracist views. Accord, Rock Against Racism, supra. Nor does a municipality's decision to prohibit political advertising on bus placards amount to viewpoint discrimination when in the course of applying this policy it denies space to a person who wishes to speak in favor of a particular political candidate. Accord, Lehman v. Shaker Heights, 418 U. S. 298, 304 (1974) (plurality opinion). Accordingly, the prohibition on viewpoint discrimination serves that important purpose of the Free Speech Clause, which is to bar the government from skewing public debate. Other things being equal, viewpoint discrimination occurs when government allows one message while prohibiting the messages of those who can reasonably be expected to respond. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 785-786 (1978) (\"Especially where . . . the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended\") (footnote omitted); Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U. S. 167, 175-176 (1976) (\"To permit one side of a debatable public question to have a monopoly in expressing its views . . . is the antithesis of constitutional guarantees\") (footnote omitted); *895 United States v. Kokinda, 497 U. S. 720, 736 (1990) (viewpoint discrimination involves an \"inten[t] to discourage one viewpoint and advance another\") (plurality opinion) (citations and internal quotation marks omitted). It is precisely this element of taking sides in a public debate that identifies viewpoint discrimination and makes it the most pernicious of all distinctions based on content. Thus, if government assists those espousing one point of view, neutrality requires it to assist those espousing opposing points of view, as well. There is no viewpoint discrimination in the University's application of its Guidelines to deny funding to Wide Awake. Under those Guidelines, a \"religious activit[y],\" which is not eligible for funding, App. to Pet. for Cert. 62a, is \"an activity which primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality,\" id., at 66a. It is clear that this is the basis on which Wide Awake Productions was denied funding. Letter from Student Council to Ronald W. Rosenberger, App. 54 (\"In reviewing the request by Wide Awake Productions, the Appropriations Committee determined your organization's request could not be funded as it is a religious activity\"). The discussion of Wide Awake's content, supra, at 865-868, shows beyond any question that it \"primarily promotes or manifests a particular belief(s) in or about a deity . . . ,\" in the very specific sense that its manifest function is to call students to repentance, to commitment to Jesus Christ, and to particular moral action because of its Christian character. If the Guidelines were written or applied so as to limit only such Christian advocacy and no other evangelical efforts that might compete with it, the discrimination would be based on viewpoint. But that is not what the regulation authorizes; it applies to Muslim and Jewish and Buddhist advocacy as well as to Christian. And since it limits funding to activities promoting or manifesting a particular belief not only \"in\" but \"about\" a deity or ultimate reality, it applies to agnostics and atheists as well as it does to deists and theists *896 (as the University maintained at oral argument, Tr. of Oral Arg. 18-19, and as the Court recognizes, see ante, at 836\u2014 837). The Guidelines, and their application to Wide Awake, thus do not skew debate by funding one position but not its competitors. As understood by their application to Wide Awake, they simply deny funding for hortatory speech that \"primarily promotes or manifests\" any view on the merits of religion; they deny funding for the entire subject matter of religious apologetics. The Court, of course, reads the Guidelines differently, but while I believe the Court is wrong in construing their breadth, the important point is that even on the Court's own construction the Guidelines impose no viewpoint discrimination. In attempting to demonstrate the potentially chilling effect such funding restrictions might have on learning in our Nation's universities, the Court describes the Guidelines as \"a sweeping restriction on student thought and student inquiry,\" disentitling a vast array of topics to funding. Ante, at 836. As the Court reads the Guidelines to exclude \"any writing that is explicable as resting upon a premise which presupposes the existence of a deity or ultimate reality,\" ibid., as well as \"those student journalistic efforts which primarily manifest or promote a belief that there is no deity and no ultimate reality,\" the Court concludes that the major works of writers from Descartes to Sartre would be barred from the funding forum, ante, at 837. The Court goes so far as to suggest that the Guidelines, properly interpreted, tolerate nothing much more than essays on \"making pasta or peanut butter cookies.\" Ibid. Now, the regulation is not so categorically broad as the Court protests. The Court reads the word \"primarily\" (\"primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality\") right out of the Guidelines, whereas it is obviously crucial in distinguishing between works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve, or simply descriptive *897 writing informing a reader about the position of a given religion. But, as I said, that is not the important point. Even if the Court were indeed correct about the funding restriction's categorical breadth, the stringency of the restriction would most certainly not work any impermissible viewpoint discrimination under any prior understanding of that species of content discrimination. If a university wished to fund no speech beyond the subjects of pasta and cookie preparation, it surely would not be discriminating on the basis of someone's viewpoint, at least absent some controversial claim that pasta and cookies did not exist. The upshot would be an instructional universe without higher education, but not a universe where one viewpoint was enriched above its competitors. The Guidelines are thus substantially different from the access restriction considered in Lamb's Chapel, the case upon which the Court heavily relies in finding a viewpoint distinction here, ante, at 830-832. Lamb's Chapel addressed a school board's regulation prohibiting the afterhours use of school premises \"by any group for religious purposes,\" even though the forum otherwise was open for a variety of social, civic, and recreational purposes. 508 U. S., at 387 (citation and internal quotation marks omitted). \"Religious\" was understood to refer to the viewpoint of a believer, and the regulation did not purport to deny access to any speaker wishing to express a nonreligious or expressly antireligious point of view on any subject, see ibid. (\"The issue in this case is whether . . . it violates the Free Speech Clause of the First Amendment . . . to deny a church access to school premises to exhibit for public viewing and for assertedly religious purposes, a film series dealing with family and child-rearing issues\"); id., at 394, citing May v. EvansvilleVanderburgh School Corp., 787 F. 2d 1105, 1114 (CA7 1986).[13] *898 With this understanding, it was unremarkable that in Lamb's Chapel we unanimously determined that the access restriction, as applied to a speaker wishing to discuss family values from a Christian perspective, impermissibly distinguished between speakers on the basis of viewpoint. See Lamb's Chapel, supra, at 393-394 (considering as-applied challenge only). Equally obvious is the distinction between that case and this one, where the regulation is being applied, not to deny funding for those who discuss issues in general from a religious viewpoint, but to those engaged in promoting or opposing religious conversion and religious observances as such. If this amounts to viewpoint discrimination, the Court has all but eviscerated the line between viewpoint and content. To put the point another way, the Court's decision equating a categorical exclusion of both sides of the religious debate with viewpoint discrimination suggests the Court has concluded that primarily religious and antireligious speech, grouped together, always provides an opposing (and not merely a related) viewpoint to any speech about any secular topic. Thus, the Court's reasoning requires a university that funds private publications about any primarily nonreligious *899 topic also to fund publications primarily espousing adherence to or rejection of religion. But a university's decision to fund a magazine about racism, and not to fund publications aimed at urging repentance before God does not skew the debate either about racism or the desirability of religious conversion. The Court's contrary holding amounts to a significant reformulation of our viewpoint discrimination precedents and will significantly expand access to limitedaccess forums. See Greer v. Spock, 424 U. S. 828 (1976) (upholding regulation prohibiting political speeches on military base); Cornelius, 473 U. S., at 812 (exclusion from fund raising drive of political activity or advocacy groups is facially viewpoint neutral despite inclusion of charitable, health, and welfare agencies); Perry, 460 U. S., at 49-50, and n. 9 (ability of teachers' bargaining representative to use internal school mail system does not require that access be provided to \"any other citizen's group or community organization with a message for school personnel\"); Lehman, 418 U. S., at 304 (plurality opinion) (exclusion of political messages from forum permissible despite ability of nonpolitical speakers to use the forum).\nIII Since I cannot see the future I cannot tell whether today's decision portends much more than making a shambles out of student activity fees in public colleges. Still, my apprehension is whetted by Chief Justice Burger's warning in Lemon v. Kurtzman, 403 U. S. 602, 624 (1971): \"in constitutional adjudication some steps, which when taken were thought to approach `the verge,' have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a `downhill thrust' easily set in motion but difficult to retard or stop.\" I respectfully dissent. NOTES [*] Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia by James S. Gilmore III, Attorney General, David E. Anderson, Chief Deputy Attorney General, William Henry Hurd, Deputy Attorney General, and Alison Paige Landry, Assistant Attorney General; for the American Center for Law and Justice by Jay Alan Sekulow, James Matthew Henderson, Sr., and Keith A. Fournier; for the Catholic League for Religious and Civil Rights by Edward M. Gaffney, Jr.; for the Christian Legal Society et al. by Douglas Laycock, Steven T. McFarland, and Samuel B. Casey; and for the Intercollegiate Studies Institute by Robert M. Rader and Donn C. Meindertsma.\nBriefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Marjorie Heins, Steven R. Shapiro, and Stephen B. Pershing; for Americans United for Separation of Church and State et al. by Steven K. Green, Samuel Rabinove, Jeffrey P. Sinensky, and Steven M. Freeman; for the Baptist Joint Committee on Public Affairs et al. by J. Brent Walker, Oliver S. Thomas, Elliot M. Mincberg, Melissa Rogers, David Saperstein, and Lois C. Waldman; for the Council on Religious Freedom by Lee Boothby, Walter E. Carson, Robert W. Nixon, and Rolland Truman; for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon; for the Pacific Legal Foundation by Anthony T. Caso and Deborah J. La Fetra; and for the Student Press Law Center by S. Mark Goodman. [1] The dissent suggests that the assessment billwould have created a \"generally available subsidy program\" comparable to respondents' Student Activities Fund (SAF). See post, at 869, n. 1. The dissent's characterization of the bill, however, is squarely at odds with the bill's clear purpose and effect to provide \"for the support of Christian teachers.\" Everson, 330 U. S., at 72. Moreover, the section of the bill cited by the dissent, see post, at 869, n. 1, simply indicated that funds would be \"disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise,\" Everson, supra, at 74. This provision disposing of undesignated funds hardly transformed the \"Bill Establishing a Provision for Teachers of the Christian Religion\" into a truly neutral program that would benefit religious adherents as part of a large class of beneficiaries defined without reference to religion. Indeed, the only appropriation of money made by the bill would have been to promote \"the general diffusion of Christian knowledge,\" 330 U. S., at 72; any possible appropriation for \"seminaries of learning\" depended entirely on future legislative action.\nEven assuming that future legislators would adhere to the bill's directive in appropriating the undesignated tax revenues, nothing in the bill would prevent use of those funds solely for sectarian educational institutions. To the contrary, most schools at the time of the founding were affiliated with some religious organization, see C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment, Formation and Early History of the First Amendment Religion Clauses 163 (1964), and in fact there was no system of public education in Virginia until several decades after the assessment bill was proposed, see A. Morrison, The Beginnings of Public Education in Virginia, 1776-1860, p. 9 (1917); see also A. Johnson, The Legal Status of Church-State Relationships in the United States 4 (1982) (\"In Virginia the parish institutions transported from England were the earliest educational agencies. Although much of the teaching took place in the home and with the aid of tutors, every minister had a school, and it was the duty of the vestry to see that all the poor children were taught to read and write\") (footnote omitted). Further, the clearly religious tenor of the Virginia assessment would seem to point toward appropriation of residual funds to sectarian \"seminaries of learning.\" Finally, although modern historians have focused on the opt-out provision, the dissent provides no indication that Madison viewed the Virginia assessment as an evenhanded program; in fact, several of the objections expressed in Madison's Memorial and Remonstrance Against Religious Assessments, reprinted in Everson, supra, at 63, focus clearly on the bill's violation of the principle of \"equality,\" or evenhandedness. See infra this page and 855-857. [2] To the contrary, Madison's Remonstrance decried the fact that the assessment bill would require civil society to take \"cognizance\" of religion. Madison's Remonstrance \u00b6 1, reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 64 (1947). Respondents' exclusion of religious activities from SAF funding creates this very problem. It requires University officials to classify publications as \"religious activities,\" and to discriminate against the publications that fall into that category. Such a policy also contravenes the principles expressed in Madison's Remonstrance by encouraging religious adherents to cleanse their speech of religious overtones, thus \"degrad[ing] from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.\" Madison's Remonstrance \u00b6 9, reprinted in Everson, supra, at 69. [3] A number of other, less familiar examples of what amount to direct funding appear in early Acts of Congress. See, e. g., Act of Feb. 20, 1833, ch. 42, 4 Stat. 618-619 (authorizing the State of Ohio to sell \"all or any part of the lands heretofore reserved and appropriated by Congress for the support of religion within the Ohio Company's . . . purchases . . . and to invest the money arising from the sale thereof, in some productive fund; the proceeds of which shall be for ever annually applied . . . for the support of religion within the several townships for which said lands were originally reserved and set apart, and for no other use or purpose whatsoever\"); Act of Mar. 2, 1833, ch. 86, \u00a7\u00a7 1, 3, 6 Stat. 538 (granting to Georgetown College\u2014a Jesuit institution\u2014\"lots in the city of Washington, to the amount, in value, of twenty-five thousand dollars,\" and directing the College to sell the lots and invest the proceeds, thereafter using the dividends to establish and endow such professorships as it saw fit); see also Wallace v. Jaffree, 472 U. S. 38, 103 (1985) (Rehnquist, J., dissenting) (\"As the United States moved from the 18th into the 19th century, Congress appropriated time and again public moneys in support of sectarian Indian education carried on by religious organizations\"). [4] The Virginia experience during the period of the Assessment Controversy itself is inconsistent with the rigid \"no-aid\" principle embraced by the dissent. Since at least 1777, the Virginia Legislature authorized tax exemptions for property belonging to the \"commonwealth, or to any county, town, college, houses for divine worship, or seminary of learning.\" Act of Jan. 23, 1800, ch. 2, \u00a7 1, 1800 Va. Acts. And even Thomas Jefferson, respondents' founder and a champion of disestablishment in Virginia, advocated the use of public funds in Virginia for a department of theology in conjunction with other professional schools. See S. Padover, The Complete Jefferson 1067 (1943); see also id., at 958 (noting that Jefferson advocated giving \"to the sectarian schools of divinity the full benefit [of] the public provisions made for instruction in the other branches of science\"). [5] In the tax literature, this identity is called a \"tax expenditure,\" a concept \"based upon recognition of the fact that a government can appropriate money to a particular person or group by using a special, narrowly directed tax deduction or exclusion, instead of by using its ordinary direct spending mechanisms. For example, a government with a general income tax, wanting to add $7,000 to the spendable income of a preacher whose top tax rate is 30%, has two ways of subsidizing him. The government can send the preacher a check for $10,000 and tax him on all of his income, or it can authorize him to reduce his taxable income by $23,333.33 [resulting in a tax saving of $7,000]. If the direct payment were itself taxable and did not alter his tax bracket, the preacher would receive the same benefit from the tax deduction as he would from the direct payment.\" Wolfman, Tax Expenditures: From Idea to Ideology, 99 Harv. L. Rev. 491, 491-492 (1985). In fact, Congress has provided a similar \"tax expenditure\" in \u00a7 107 of the Internal Revenue Code by granting a \"`minister of the gospel' \" an unlimited exclusion for the rental value of any home furnished as part of his pay or for the rental allowance paid to him. See id., at 492, n. 6.\nAlthough Professor Bittker is certainly a leading scholar in the tax field, the dissent's reliance on Bittker, see post, at 881, n. 7, is misplaced in this context. See Adler, The Internal Revenue Code, The Constitution, and the Courts: The Use of Tax Expenditure Analysis in Judicial Decision Making, 28 Wake Forest L. Rev. 855, 862, n. 30 (1993): \"Early criticism of the tax expenditure concept focused on the difficulty of drawing a dividing line between what is or is not a special provision. Professor Boris Bittker, for example, argued that since no tax is all inclusive, exemptions from any tax could not be described as the equivalent of subsidies. Boris I. Bittker, Churches, Taxes and the Constitution, 78 Yale L. J. 1285 (1969). This wholesale rejection of tax expenditure analysis was short-lived and attracted few supporters. Rather, the large body of literature about tax expenditures accepts the basic concept that special exemptions from tax function as subsidies. The current debate focuses on whether particular items are correctly identified as tax expenditures and whether incentive provisions are more efficient when structured as tax expenditures rather than direct spending programs. See generally [numerous authorities].\" [1] Justice Thomas suggests that Madison would have approved of the assessment bill if only it had satisfied the principle of evenhandedness. Nowhere in the Remonstrance, however, did Madison advance the view that Virginia should be able to provide financial support for religion as part of a generally available subsidy program. Indeed, while Justice Thomas claims that the \"funding provided by the Virginia assessment was to be extended only to Christian sects,\" ante, at 855, it is clear that the bill was more general in scope than this. While the bill, which is reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 72-74 (1947), provided that each taxpayer could designate a religious society to which he wanted his levy paid, id., at 73, it would also have allowed a taxpayer to refuse to appropriate his levy to any religious society, in which case the legislature was to use these unappropriated sums to fund \"seminaries of learning.\" Id., at 74 (contrary to Justice Thomas's unsupported assertion, this portion of the bill was no less obligatory than any other). While some of these seminaries undoubtedly would have been religious in character, others would not have been, as a seminary was generally understood at the time to be \"any school, academy, college or university, in which young persons are instructed in the several branches of learning which may qualify them for their future employments.\" N. Webster, An American Dictionary of the English Language (1st ed. 1828); see also 14 The Oxford English Dictionary 956 (2d ed. 1989). Not surprisingly, then, scholars have generally agreed that the bill would have provided funding for nonreligious schools. See, e. g., Laycock, \"Nonpreferential\" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 897, and n. 108 (1986) (\"Any taxpayer could refuse to designate a church, with undesignated church taxes going to a fund for schools. . . . The bill used the phrase `seminaries of learning,' which almost certainly meant schools generally and not just schools for the training of ministers\"); T. Buckley, Church and State in Revolutionary Virginia, 1776-1787, p. 133 (1977) (\"The assessment had been carefully drafted to permit those who preferred to support education rather than religion to do so\"); T. Curry, The First Freedoms 141 (1986) (\"[T]hose taxes not designated for any specific denomination [were] allocated to education\"). It is beside the point that \"there was no system of public education in Virginia until several decades after the assessment bill was proposed,\" ante, at 854, n. 1 (Thomas, J., concurring); because the bill was never passed, the funds that it would have made available for secular, public schools never materialized. The fact that the bill, if passed, would have funded secular as well as religious instruction did nothing to soften Madison's opposition to it.\nNor is it fair to argue that Madison opposed the bill only because it treated religious groups unequally. Ante, at 854-855 (Thomas, J., concurring). In various paragraphs of the Remonstrance, Madison did complain about the bill's peculiar burdens and exemptions, Everson, supra, at 66, but to identify this factor as the sole point of Madison's opposition to the bill is unfaithful to the Remonstrance's text. Madison strongly inveighed against the proposed aid for religion for a host of reasons (the Remonstrance numbers 15 paragraphs, each containing at least one point in opposition), and crucial here is the fact that many of those reasons would have applied whether or not the state aid was being distributed equally among sects, and whether or not the aid was going to those sects in the context of an evenhanded government program. See, e. g., Madison's Remonstrance, reprinted in Everson, 330 U. S., at 64, \u00b6 1 (\"[I]n matters of Religion, no man's right is abridged by the institution of Civil Society, and . . . Religion is wholly exempt from its cognizance\"); id., at 67, \u00b6 6 (arguing that state support of religion \"is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world\"); ibid., \u00b6 7 (\"[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation\"). Madison's objections were supplemented by numerous other petitions in opposition to the bill that likewise do not suggest that the lack of evenhandedness was its dispositive flaw. L. Levy, The Establishment Clause: Religion and the First Amendment 63-67 (2d ed. 1994). For example, the petition that received the largest number of signatories was motivated by the view that religion should only be supported voluntarily. Id., at 63-64. Indeed, Madison's Remonstrance did not argue for a bill distributing aid to all sects and religions on an equal basis, and the outgrowth of the Remonstrance and the defeat of the Virginia assessment was not such a bill; rather, it was the Virginia Bill for Establishing Religious Freedom, which, as discussed in the text, proscribed the use of tax dollars for religious purposes. In attempting to recast Madison's opposition as having principally been targeted against \"governmental preferences for particular religious faiths,\" ante, at 856 (emphasis in original), Justice Thomas wishes to wage a battle that was lost long ago, for \"this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another,\" School Dist. of Abington Township v. Schempp, 374 U. S. 203, 216 (1963); see also Texas Monthly, Inc. v. Bullock, 489 U. S. 1, 17 (1989) (plurality opinion); id., at 28 (Blackmun, J., concurring in judgment); Wallace v. Jaffree, 472 U. S. 38, 52-53 (1985); Torcaso v. Watkins, 367 U. S. 488, 495 (1961); Engel v. Vitale, 370 U. S. 421, 430 (1962); Everson, supra, at 15; see generally Lee v. Weisman, 505 U. S. 577, 609-616 (1992) (Souter, J., concurring). [2] Justice Thomas attempts to cast doubt on this accepted version of Establishment Clause history by reference to historical facts that are largely inapposite. Ante, at 857-858, 862-863 (concurring opinion). As I have said elsewhere, individual Acts of Congress, especially when they are few and far between, scarcely serve as an authoritative guide to the meaning of the Religion Clauses, for \"like other politicians, [members of the early Congresses] could raise constitutional ideals one day and turn their backs on them the next. [For example,] . . . [t]en years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress's political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship.\" Lee v. Weisman, supra, at 626 (concurring opinion). The legislation cited by Justice Thomas, including the Northwest Ordinance, is no more dispositive than the Alien and Sedition Acts in interpreting the First Amendment. Even less persuasive, then, are citations to constitutionally untested Acts dating from the mid-19th century, for without some rather innovative argument, they cannot be offered as providing an authoritative gloss on the Framers' intent.\nJustice Thomas's references to Madison's actions as a legislator also provide little support for his cause. Justice Thomas seeks to draw a significant lesson out of the fact that, in seeking to disestablish the Anglican Church in Virginia in 1776, Madison did not inveigh against state funding of religious activities. Ante, at 857 (concurring opinion). That was not the task at hand, however. Madison was acting with the specific goal of eliminating the special privileges enjoyed by Virginia Anglicans, and he made no effort to lay out the broader views of church and state that came to bear in his drafting of the First Amendment some 13 years later. That Madison did not speak in more expansive terms than necessary in 1776 was hardly surprising for, as it was, his proposal was defeated by the Virginia Convention as having gone too far. Ibid. Similarly, the invocation of Madison's tenure on the congressional committee that approved funding for legislative chaplains provides no support for more general principles that run counter to settled Establishment Clause jurisprudence. As I have previously pointed out, Madison, upon retirement, \"insisted that `it was not with my approbation, that the deviation from [the immunity of religion from civil jurisdiction] took place in Congs., when they appointed Chaplains, to be paid from the Natl. Treasury.' \" Lee, 505 U. S., at 625, n. 6, quoting Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution 105 (P. Kurland & R. Lerner eds. (1987)). And when we turned our attention to deciding whether funding of legislative chaplains posed an establishment problem, we did not address the practice as one instance of a larger class of permissible government funding of religious activities. Instead, Marsh v. Chambers, 463 U. S. 783, 791 (1983), explicitly relied on the singular, 200-year pedigree of legislative chaplains, noting that \"[t]his unique history\" justified carving out an exception for the specific practice in question. Given that the decision upholding this practice was expressly limited to its facts, then, it would stand the Establishment Clause on its head to extract from it a broad rule permitting the funding of religious activities. [3] In the District Court, the parties agreed to the following facts: \"The University of Virginia has charged at all times relevant herein and currently charges each full-time student a compulsory student activity fee of $14.00 per semester. There is no procedural or other mechanism by which a student may decline to pay the fee.\" App. 37; see also id., at 9, 21. [4] To the extent the Court perceives some distinction between the printing and dissemination of evangelism and proselytization, and core religious activity \"in [its]usual sense,\" ante, at 844, this distinction goes entirely unexplained in the Court's opinion. [5] In a narrow band of cases at the polar extreme from direct funding cases, those involving essential public benefits commonly associated with living in an organized society (like police and fire protection, for example), evenhandedness may become important to ensuring that religious interests are not inhibited. [6] In Zobrest, a deaf student sought to have an interpreter, provided under a state Act aiding individuals with disabilities, accompany him to a Roman Catholic high school. In Witters, a blind student sought to use aid, provided under a state program for assistance to handicapped persons, to attend a private Christian college. In Mueller, parents sought to take a tax deduction, available for parents of both public and nonpublic schoolchildren, for certain expenses incurred in connection with providing education for their children in private religious schools. [7] Walz v. Tax Comm'n of City of New York, 397 U. S. 664 (1970), is yet another example of a case in which the Court treated the general availability of a government benefit as a significant condition defining compliance with the Establishment Clause, but did not deem that condition sufficient. In upholding state property tax exemptions given to religious organizations in Walz, we noted that the law at issue was applicable to \"a broad class of property owned by nonprofit [and] quasi-public corporations,\" id., at 673, but did not rest on that factor alone. Critical to our decision was the central principle that direct funding of religious activities is prohibited under the Establishment Clause. \"It is sufficient to note that for the men who wrote the Religion Clauses of the First Amendment the `establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.\" Id., at 668. We emphasized that the tax exemptions did not involve the expenditure of government funds in support of religious activities. \"The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state.\" Id., at 675. Moreover, we noted that in the property taxation context, \"exemption[s] creat[e] only a minimal and remote involvement between church and state and far less than taxation of churches,\" and in operation \"ten[d] to complement and reinforce the desired separation insulating\" church and state, id., at 676; and that religious property tax exemptions have been in place for over 200 years without disruption to the interests represented by the Establishment Clause, id., at 676-680.\nJustice Thomas's assertion, that \"[a] tax exemption in many cases is economically and functionally indistinguishable from a direct monetary subsidy,\" ante, at 859 (concurring opinion) (footnote omitted), assumes that the \"natural\" or \"correct\" tax base is so self-evident that any provision excusing a person or institution from taxes to which others are subjected must be a departure from the natural tax base rather than part of the definition of the tax base itself. The equivalence (asserted by Justice Thomas, ibid. ) between a direct money subsidy and the tax liability avoided by an institution (because it is part of the class of institutions that defines the relevant tax base by its exclusion) was tested and dispatched long ago by Professor Bittker in Churches, Taxes and the Constitution, 78 Yale L. J. 1285 (1969). Justice Thomas's suggestion that my \"reliance on Bittker. .. is misplaced in this context,\"ante, at 860,n.5, is not on point. Even granting that Justice Thomas's assertion of equivalence is reasonable, he cannot and does not deny the fact that the Court in Walz explicitly distinguished tax exemptions from direct money subsidies, 397 U. S.,at 675,and rested its decision on that distinction.If Justice Thomas's assertion of equivalence should prevail then the Walz Court necessarily was wrong about a distinction critical to its holding.Justice Thomas can hardly use Walz coherently for support after removing the basis on which it relies. [8] Although the main opinion in Tilton was a plurality, the entire Court was unanimous on this point. See 403 U. S.,at 682-684 (plurality opinion); id., at 692 (Douglas, J., joined by Black and Marshall, JJ., concurring in part and dissenting in part); Lemon v. Kurtzman, 403 U. S. 602, 659-661 (1971) (opinion of Brennan, J.); id., at 665, n. 1 (opinion of White, J.). [9] Congress apparently also reads our cases as the University did, for it routinely excludes religious activities from general funding programs. See, e. g., 20 U. S. C. \u00a7 1062(b) (federal grant program for institutions of higher education; \"[n]o grant may be made under this chapter for any educational program, activity, or service related to sectarian instruction or religious worship, or provided by a school or department of divinity\"); 20 U. S. C. \u00a7 1069c (certain grants to higher education institutions \"may not be used . . . for a school or department of divinity or any religious worship or sectarian activity . . .\"); 20 U. S. C. \u00a7 1132c\u20143(c) (1988 ed., Supp. V) (federal assistance for renovation of certain academic facilities; \"[n]o loan may be made under this part for any educational program, activity or service related to sectarian instruction or religious worship or provided by a school or department of divinity or to an institution in which a substantial portion of its functions is subsumed in a religious mission\"); 20 U. S. C. \u00a7 1132i(c) (grant program for educational facilities; \"no project assisted with funds under this subchapter shall ever be used for religious worship or a sectarian activity or for a school or department of divinity\"); 20 U. S. C. \u00a7 1213d (\"No grant may be made under this chapter for any educational program, activity, or service related to sectarian instruction or religious worship, or provided by a school or department of divinity\"); 25 U. S. C. \u00a7 3306(a) (1988 ed., Supp. V) (funding for Indian higher education programs; \"[n]one of the funds made available under this subchapter may be used for study at any school or department of divinity or for any religious worship or sectarian activity\"); 29 U. S. C. \u00a7 776(g) (grants for projects and activities for rehabilitation of handicapped persons; \"[n]o funds provided under this subchapter may be used to assist in the construction of any facility which is or will be used for religious worship or any sectarian activity\"); 42 U. S. C. \u00a7 3027(a)(14)(A)(iv) (1988 ed. and Supp. V) (requiring States seeking federal aid for construction of centers for the elderly to submit plans providing assurances that \"the facilit[ies] will not be used and [are] not intended to be used for sectarian instruction or as . . . place[s] for religious worship\"); 42 U. S. C. \u00a7 5001(a)(2) (1988 ed., Supp. V) (federal grants to support volunteer projects for the elderly, but not including \"projects involving the construction, operation, or maintenance of so much of any facility used or to be used for sectarian instruction or as a place for religious worship\"); 42 U. S. C. \u00a7 9858k(a) (1988 ed., Supp. V) (no child care and development block grants \"shall be expended for any sectarian purpose or activity, including sectarian worship or instruction\"). [10] The Court acknowledges that \"if the State pays a church's bills it is subsidizing it,\"and concedes that \"we must guard against this abuse.\" Ante, at 844. These concerns are not present here, the Court contends, because Wide Awake \"is not a religious institution, at least in the usual sense of that term as used in our case law.\" Ibid. The Court's concession suggests that its distinction between paying a religious institution and paying a religious institution's bills is not really significant. But if the Court is relying on its characterization of Wide Awake as not a religious institution, \"at least in the usual sense,\" the Court could presumably stop right there. [11] The Court draws a distinction between a State's use of public funds to advance its own speech and the State's funding of private speech, suggesting that authority to make content-related choices is at its most powerful when the State undertakes the former. Ante, at 833-835. I would not argue otherwise, see Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270-273 (1988), but I do suggest that this case reveals the difficulties that can be encountered in drawing this distinction. There is a communicative element inherent in the very act of funding itself, cf. Buckley v. Valeo, 424 U. S. 1, 15-19 (1976) (per curiam), and although it is the student speakers who choose which particular messages to advance in the forum created by the University, the initial act of defining the boundaries of the forum is a decision attributable to the University,not the students.In any event, even assuming that private and state speech always may be separated by cleanlines and that this case involves only the former,I believe the distinction is irrelevant here because, as is discussed infra, this case does not involve viewpoint discrimination. [12] I do not decide that all viewpoint discrimination in a public university's funding determinations would violate the Free Speech Clause. If, however, the determinations are made on the basis of a reasonable subject-matter distinction, but not on a view point distinction, there is no violation.In a limited-access forum, a speech restriction must be \"`reasonable in light of the purpose served by the forum' \" as well as viewpoint neutral.E. g., Lamb's Chapel, 508 U. S., at 392-393, quoting Cornelius, 473 U. S.,at 806. Because petitioners have not challenged the University's Guideline as unreasonable, I express no opinion on that or on the question whether the reasonableness criterion applies in speech funding cases in the same manner that it applies in limited-access forum cases. [13] See also Tr. of Oral Arg. in Lamb's Chapel v. Center Moriches Union Free School Dist., O. T. 1992, No. 91-2024, where counsel for the school district charged with enforcing the restriction unequivocally admitted that anyone with an atheistic or anti religious message would be permitted to use school property under the rules of the forum. Id., at 47, 57-58. The complete exchange during the oral argument in Lamb's Chapel went as follows: \"QUESTION: But do I understand your statement you made earlier that supposing you had a communist group that wanted to address the subject of family values and they thought there was a value in not having children waste their time going to Sunday school or church and therefore they had a point of view that was definitely anti religious, they would be permitted, under your policy, to discuss family values in that context? \"[COUNSEL]: Yes. Yes, Your Honor, that's correct. . . . . . \"QUESTION: Counsel, in your earlier discussions with [the Court] you indicated that communists would be able to give their perspective on family. I\u2014I assume from that that atheists would be able to give theirs under your rules. \"[COUNSEL]: Yes, Your Honor.\"","meta":{"dup_signals":{"dup_doc_count":1301,"dup_dump_count":97,"dup_details":{"2024-30":3,"2024-26":4,"2024-22":1,"2024-18":2,"2024-10":3,"2017-13":9,"2015-18":49,"2015-11":47,"2015-06":43,"2014-10":31,"2013-48":34,"2013-20":26,"2023-50":2,"2023-40":3,"2023-23":8,"2023-14":3,"2023-06":2,"2022-49":1,"2022-40":3,"2022-33":2,"2022-27":2,"2022-21":7,"2022-05":1,"2021-49":3,"2021-43":1,"2021-39":5,"2021-31":2,"2021-25":1,"2021-21":3,"2021-17":3,"2021-10":5,"2021-04":7,"2020-50":4,"2020-45":1,"2020-40":2,"2020-34":4,"2020-29":6,"2020-24":1,"2020-16":4,"2020-10":2,"2020-05":6,"2019-51":1,"2019-47":3,"2019-39":6,"2019-35":1,"2019-30":5,"2019-22":4,"2019-18":4,"2019-13":3,"2019-09":1,"2019-04":7,"2018-51":3,"2018-47":7,"2018-43":2,"2018-39":5,"2018-34":2,"2018-30":4,"2018-26":3,"2018-22":3,"2018-17":4,"2018-13":5,"2018-09":4,"2018-05":4,"2017-51":2,"2017-47":6,"2017-43":5,"2017-39":8,"2017-34":3,"2017-30":5,"2017-26":3,"2017-22":12,"2017-17":5,"2017-09":45,"2017-04":6,"2016-50":7,"2016-44":11,"2016-40":12,"2016-36":10,"2016-30":14,"2016-26":3,"2016-22":2,"2016-18":2,"2016-07":48,"2015-48":44,"2015-40":31,"2015-35":44,"2015-32":43,"2015-27":38,"2015-22":12,"2015-14":36,"2014-52":43,"2014-49":49,"2014-42":74,"2014-41":61,"2014-35":61,"2014-23":68,"2014-15":61}}},"subset":"freelaw"}
{"text":"410 U.S. 179 (1973) DOE ET AL. v. BOLTON, ATTORNEY GENERAL OF GEORGIA, ET AL. No. 70-40. Supreme Court of United States. Argued December 13, 1971. Reargued October 11, 1972. Decided January 22, 1973. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA. *181 Margie Pitts Hames reargued the cause for appellants. With her on the briefs were Reber F. Boult, Jr., Charles Morgan, Jr., Elizabeth Roediger Rindskopf, and Tobiane Schwartz. Dorothy T. Beasley reargued the cause for appellees. With her on the brief were Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, Joel Feldman, Henry L. Bowden, and Ralph H. Witt.[*] MR. JUSTICE BLACKMUN delivered the opinion of the Court. In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are \u00a7\u00a7 26-1201 through 26-1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante, p. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect *182 in a majority of our States. The Georgia legislation, however, is different and merits separate consideration.\nI The statutes in question are reproduced as Appendix A, post, p. 202.[1] As the appellants acknowledge,[2] the 1968 statutes are patterned upon the American Law Institute's Model Penal Code, \u00a7 230.3 (Proposed Official Draft, 1962), reproduced as Appendix B, post, p. 205. The ALI proposal has served as the model for recent legislation in approximately one-fourth of our States.[3] The new Georgia provisions replaced statutory law that had been in effect for more than 90 years. Georgia Laws 1876, No. 130, \u00a7 2, at 113.[4] The predecessor statute paralleled *183 the Texas legislation considered in Roe v. Wade, supra, and made all abortions criminal except those necessary \"to preserve the life\" of the pregnant woman. The new statutes have not been tested on constitutional grounds in the Georgia state courts. Section 26-1201, with a referenced exception, makes abortion a crime, and \u00a7 26-1203 provides that a person convicted of that crime shall be punished by imprisonment for not less than one nor more than 10 years. Section 26-1202 (a) states the exception and removes from \u00a7 1201's definition of criminal abortion, and thus makes noncriminal, an abortion \"performed by a physician duly licensed\" in Georgia when, \"based upon his best clinical judgment . . . an abortion is necessary because: \"(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or \"(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or \"(3) The pregnancy resulted from forcible or statutory rape.\"[5] Section 26-1202 also requires, by numbered subdivisions of its subsection (b), that, for an abortion to be authorized *184 or performed as a noncriminal procedure, additional conditions must be fulfilled. These are (1) and (2) residence of the woman in Georgia; (3) reduction to writing of the performing physician's medical judgment that an abortion is justified for one or more of the reasons specified by \u00a7 26-1202 (a), with written concurrence in that judgment by at least two other Georgia-licensed physicians, based upon their separate personal medical examinations of the woman; (4) performance of the abortion in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals; (5) advance approval by an abortion committee of not less than three members of the hospital's staff; (6) certifications in a rape situation; and (7), (8), and (9) maintenance and confidentiality of records. There is a provision (subsection (c)) for judicial determination of the legality of a proposed abortion on petition of the judicial circuit law officer or of a close relative, as therein defined, of the unborn child, and for expeditious hearing of that petition. There is also a provision (subsection (e)) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds, not to participate in the procedure.\nII On April 16, 1970, Mary Doe,[6] 23 other individuals (nine described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers), and two nonprofit Georgia corporations that advocate abortion reform instituted this federal action in the Northern District of Georgia against the State's attorney general, the district attorney of *185 Fulton County, and the chief of police of the city of Atlanta. The plaintiffs sought a declaratory judgment that the Georgia abortion statutes were unconstitutional in their entirety. They also sought injunctive relief restraining the defendants and their successors from enforcing the statutes. Mary Doe alleged: (1) She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe's poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconciled. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child. (2) On March 25, 1970, she applied to the Abortion Committee of Grady Memorial Hospital, Atlanta, for a therapeutic abortion under \u00a7 26-1202. Her application was denied 16 days later, on April 10, when she was eight weeks pregnant, on the ground that her situation was not one described in \u00a7 26-1202 (a).[7] (3) Because her application was denied, she was forced either to relinquish \"her right to decide when and how many children she will bear\" or to seek an abortion that was illegal under the Georgia statutes. This invaded her *186 rights of privacy and liberty in matters related to family, marriage, and sex, and deprived her of the right to choose whether to bear children. This was a violation of rights guaranteed her by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The statutes also denied her equal protection and procedural due process and, because they were unconstitutionally vague, deterred hospitals and doctors from performing abortions. She sued \"on her own behalf and on behalf of all others similarly situated.\" The other plaintiffs alleged that the Georgia statutes \"chilled and deterred\" them from practicing their respective professions and deprived them of rights guaranteed by the First, Fourth, and Fourteenth Amendments. These plaintiffs also purported to sue on their own behalf and on behalf of others similarly situated. A three-judge district court was convened. An offer of proof as to Doe's identity was made, but the court deemed it unnecessary to receive that proof. The case was then tried on the pleadings and interrogatories. The District Court, per curiam, 319 F. Supp. 1048 (ND Ga. 1970), held that all the plaintiffs had standing but that only Doe presented a justiciable controversy. On the merits, the court concluded that the limitation in the Georgia statute of the \"number of reasons for which an abortion may be sought,\" id., at 1056, improperly restricted Doe's rights of privacy articulated in Griswold v. Connecticut, 381 U.S. 479 (1965), and of \"personal liberty,\" both of which it thought \"broad enough to include the decision to abort a pregnancy,\" 319 F. Supp., at 1055. As a consequence, the court held invalid those portions of \u00a7\u00a7 26-1202 (a) and (b) (3) limiting legal abortions to the three situations specified; \u00a7 26-1202 (b) (6) relating to certifications in a rape situation; and \u00a7 26-1202 (c) authorizing a court test. Declaratory relief was granted accordingly. The court, however, held *187 that Georgia's interest in protection of health, and the existence of a \"potential of independent human existence\" (emphasis in original), id., at 1055, justified state regulation of \"the manner of performance as well as the quality of the final decision to abort,\" id., at 1056, and it refused to strike down the other provisions of the statutes. It denied the request for an injunction, id., at 1057. Claiming that they were entitled to an injunction and to broader relief, the plaintiffs took a direct appeal pursuant to 28 U.S. C. \u00a7 1253. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971). The defendants also purported to appeal, pursuant to \u00a7 1253, but their appeal was dismissed for want of jurisdiction. 402 U.S. 936 (1971). We are advised by the appellees, Brief 42, that an alternative appeal on their part is pending in the United States Court of Appeals for the Fifth Circuit. The extent, therefore, to which the District Court decision was adverse to the defendants, that is, the extent to which portions of the Georgia statutes were held to be unconstitutional, technically is not now before us.[8]Swarb v. Lennox, 405 U.S. 191, 201 (1972).\nIII Our decision in Roe v. Wade, ante, p. 113, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe's existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe's and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy and has standing to maintain the action. *188 Inasmuch as Doe and her class are recognized, the question whether the other appellants\u2014physicians, nurses, clergymen, social workers, and corporations\u2014 present a justiciable controversy and have standing is perhaps a matter of no great consequence. We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State's abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F.2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). In holding that the physicians, while theoretically possessed of standing, did not present a justiciable controversy, the District Court seems to have relied primarily on Poe v. Ullman, 367 U.S. 497 (1961). There, a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice on the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one had ever been prosecuted under it. Georgia's statute, in contrast, is recent and not moribund. Furthermore, it is the successor to another *189 Georgia abortion statute under which, we are told,[9] physicians were prosecuted. The present case, therefore, is closer to Epperson v. Arkansas, 393 U.S. 97 (1968), where the Court recognized the right of a school teacher, though not yet charged criminally, to challenge her State's anti-evolution statute. See also Griswold v. Connecticut, 381 U. S., at 481. The parallel claims of the nurse, clergy, social worker, and corporation-appellants are another step removed and as to them, the Georgia statutes operate less directly. Not being licensed physicians, the nurses and the others are in no position to render medical advice. They would be reached by the abortion statutes only in their capacity as accessories or as counselor-conspirators. We conclude that we need not pass upon the status of these additional appellants in this suit, for the issues are sufficiently and adequately presented by Doe and the physician-appellants, and nothing is gained or lost by the presence or absence of the nurses, the clergymen, the social workers, and the corporations. See Roe v. Wade, ante, at 127.\nIV The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection. A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here and need not be repeated. *190 B. The appellants go on to argue, however, that the present Georgia statutes must be viewed historically, that is, from the fact that prior to the 1968 Act an abortion in Georgia was not criminal if performed to \"preserve the life\" of the mother. It is suggested that the present statute, as well, has this emphasis on the mother's rights, not on those of the fetus. Appellants contend that it is thus clear that Georgia has given little, and certainly not first, consideration to the unborn child. Yet, it is the unborn child's rights that Georgia asserts in justification of the statute. Appellants assert that this justification cannot be advanced at this late date. Appellants then argue that the statutes do not adequately protect the woman's right. This is so because it would be physically and emotionally damaging to Doe to bring a child into her poor, \"fatherless\"[10] family, and because advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child. Thus, \"a statute that requires a woman to carry an unwanted pregnancy to term infringes not only on a fundamental right of privacy but on the right to life itself.\" Brief 27. The appellants recognize that a century ago medical knowledge was not so advanced as it is today, that the techniques of antisepsis were not known, and that any abortion procedure was dangerous for the woman. To restrict the legality of the abortion to the situation where it was deemed necessary, in medical judgment, for the preservation of the woman's life was only a natural conclusion in the exercise of the legislative judgment of that time. A State is not to be reproached, however, for a past judgmental determination made in the light of then-existing medical knowledge. It is perhaps unfair to argue, as the appellants do, that because the early focus *191 was on the preservation of the woman's life, the State's present professed interest in the protection of embryonic and fetal life is to be downgraded. That argument denies the State the right to readjust its views and emphases in the light of the advanced knowledge and techniques of the day. C. Appellants argue that \u00a7 26-1202 (a) of the Georgia statutes, as it has been left by the District Court's decision, is unconstitutionally vague. This argument centers on the proposition that, with the District Court's having struck down the statutorily specified reasons, it still remains a crime for a physician to perform an abortion except when, as \u00a7 26-1202 (a) reads, it is \"based upon his best clinical judgment that an abortion is necessary.\" The appellants contend that the word \"necessary\" does not warn the physician of what conduct is proscribed; that the statute is wholly without objective standards and is subject to diverse interpretation; and that doctors will choose to err on the side of caution and will be arbitrary. The net result of the District Court's decision is that the abortion determination, so far as the physician is concerned, is made in the exercise of his professional, that is, his \"best clinical,\" judgment in the light of all the attendant circumstances. He is not now restricted to the three situations originally specified. Instead, he may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him. The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U.S. 62, 71-72 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal \"unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine.\" That statute has been construed to bear upon psychological as *192 well as physical well-being. This being so, the Court concluded that the term \"health\" presented no problem of vagueness. \"Indeed, whether a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.\" Id., at 72. This conclusion is equally applicable here. Whether, in the words of the Georgia statute, \"an abortion is necessary\" is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors\u2014physical, emotional, psychological, familial, and the woman's age\u2014relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman. D. The appellants next argue that the District Court should have declared unconstitutional three procedural demands of the Georgia statute: (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals:[11] (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician's judgment be confirmed by the independent examinations of the patient by two other licensed physicians. The appellants attack these provisions not only on the ground that they unduly restrict the woman's right of privacy, but also on procedural due process and equal protection grounds. The physician-appellants also argue that, by subjecting a doctor's individual medical judgment to *193 committee approval and to confirming consultations, the statute impermissibly restricts the physician's right to practice his profession and deprives him of due process. 1. JCAH accreditation. The Joint Commission on Accreditation of Hospitals is an organization without governmental sponsorship or overtones. No question whatever is raised concerning the integrity of the organization or the high purpose of the accreditation process.[12] That process, however, has to do with hospital standards generally and has no present particularized concern with abortion as a medical or surgical procedure.[13] In Georgia, there is no restriction on the performance of non-abortion surgery in a hospital not yet accredited by the JCAH so long as other requirements imposed by the State, such as licensing of the hospital and of the operating surgeon, are met. See Georgia Code \u00a7\u00a7 88-1901 (a) *194 and 88-1905 (1971) and 84-907 (Supp. 1971). Furthermore, accreditation by the Commission is not granted until a hospital has been in operation at least one year. The Model Penal Code, \u00a7 230.3, Appendix B hereto, contains no requirement for JCAH accreditation. And the Uniform Abortion Act (Final Draft, Aug. 1971),[14] approved by the American Bar Association in February 1972, contains no JCAH-accredited hospital specification.[15] Some courts have held that a JCAH-accreditation requirement is an overbroad infringement of fundamental rights because it does not relate to the particular medical problems and dangers of the abortion operation. E. g., Poe v. Menghini, 339 F. Supp., at 993-994. We hold that the JCAH-accreditation requirement does not withstand constitutional scrutiny in the present context. It is a requirement that simply is not \"based on differences that are reasonably related to the purposes of the Act in which it is found.\" Morey v. Doud, 354 U.S. 457, 465 (1957). This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt *195 standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish. The appellants contend that such a relationship would be lacking even in a lesser requirement that an abortion be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State to possess all the staffing and services necessary to perform an abortion safely (including those adequate to handle serious complications or other emergency, or arrangements with a nearby hospital to provide such services). Appellants and various amici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications. The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests. We hold that the hospital requirement of the Georgia law, because it fails to exclude the first trimester of pregnancy, see Roe v. Wade, ante, at 163, is also invalid. In so holding we naturally express no opinion on the medical judgment involved in any particular case, that is, whether the patient's situation is such that an abortion should be performed in a hospital, rather than in some other facility. 2. Committee approval. The second aspect of the appellants' procedural attack relates to the hospital abortion committee and to the pregnant woman's asserted *196 lack of access to that committee. Relying primarily on Goldberg v. Kelly, 397 U.S. 254 (1970), concerning the termination of welfare benefits, and Wisconsin v. Constantineau, 400 U.S. 433 (1971), concerning the posting of an alcoholic's name, Doe first argues that she was denied due process because she could not make a presentation to the committee. It is not clear from the record, however, whether Doe's own consulting physician was or was not a member of the committee or did or did not present her case, or, indeed, whether she herself was or was not there. We see nothing in the Georgia statute that explicitly denies access to the committee by or on behalf of the woman. If the access point alone were involved, we would not be persuaded to strike down the committee provision on the unsupported assumption that access is not provided. Appellants attack the discretion the statute leaves to the committee. The most concrete argument they advance is their suggestion that it is still a badge of infamy \"in many minds\" to bear an illegitimate child, and that the Georgia system enables the committee members' personal views as to extramarital sex relations, and punishment therefor, to govern their decisions. This approach obviously is one founded on suspicion and one that discloses a lack of confidence in the integrity of physicians. To say that physicians will be guided in their hospital committee decisions by their predilections on extramarital sex unduly narrows the issue to pregnancy outside marriage. (Doe's own situation did not involve extramarital sex and its product.) The appellants' suggestion is necessarily somewhat degrading to the conscientious physician, particularly the obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concern of his female patients. He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, *197 so-called \"error,\" and needs. The good physician\u2014despite the presence of rascals in the medical profession, as in all others, we trust that most physicians are \"good\"\u2014 will have sympathy and understanding for the pregnant patient that probably are not exceeded by those who participate in other areas of professional counselling. It is perhaps worth noting that the abortion committee has a function of its own. It is a committee of the hospital and it is composed of members of the institution's medical staff. The membership usually is a changing one. In this way, its work burden is shared and is more readily accepted. The committee's function is protective. It enables the hospital appropriately to be advised that its posture and activities are in accord with legal requirements. It is to be remembered that the hospital is an entity and that it, too, has legal rights and legal obligations. Saying all this, however, does not settle the issue of the constitutional propriety of the committee requirement. Viewing the Georgia statute as a whole, we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee. With regard to the protection of potential life, the medical judgment is already completed prior to the committee stage, and review by a committee once removed from diagnosis is basically redundant. We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under \u00a7 26-1202 (e), the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further, a physician or any other employee has the right to refrain, *198 for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26-1202 (e) affords adequate protection to the hospital, and little more is provided by the committee prescribed by \u00a7 26-1202 (b) (5). We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State. 3. Two-doctor concurrence. The third aspect of the appellants' attack centers on the \"time and availability of adequate medical facilities and personnel.\" It is said that the system imposes substantial and irrational roadblocks and \"is patently unsuited\" to prompt determination of the abortion decision. Time, of course, is critical in abortion. Risks during the first trimester of pregnancy are admittedly lower than during later months. The appellants purport to show by a local study[16] of Grady Memorial Hospital (serving indigent residents in Fulton and DeKalb Counties) that the \"mechanics of the system itself forced . . . discontinuance of the abortion process\" because the median time for the workup was 15 days. The same study shows, however, that 27% of the candidates for abortion were already 13 or more weeks pregnant at the time of application, that is, they were at the end of or beyond the first trimester when they made their applications. It is too much to say, as appellants do, that these particular persons \"were victims of a system over which they [had] no control.\" If higher risk was incurred because of abortions in the *199 second rather than the first trimester, much of that risk was due to delay in application, and not to the alleged cumbersomeness of the system. We note, in passing, that appellant Doe had no delay problem herself; the decision in her case was made well within the first trimester. It should be manifest that our rejection of the accredited-hospital requirement and, more important, of the abortion committee's advance approval eliminates the major grounds of the attack based on the system's delay and the lack of facilities. There remains, however, the required confirmation by two Georgia-licensed physicians in addition to the recommendation of the pregnant woman's own consultant (making under the statute, a total of six physicians involved, including the three on the hospital's abortion committee). We conclude that this provision, too, must fall. The statute's emphasis, as has been repetitively noted, is on the attending physician's \"best clinical judgment that an abortion is necessary.\" That should be sufficient. The reasons for the presence of the confirmation step in the statute are perhaps apparent, but they are insufficient to withstand constitutional challenge. Again, no other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited to us. If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice. The attending physician will know when a consultation is advisable \u2014the doubtful situation, the need for assurance when the medical decision is a delicate one, and the like. Physicians have followed this routine historically and *200 know its usefulness and benefit for all concerned. It is still true today that \"[r]eliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he [the physician] possesses the requisite qualifications.\" Dent v. West Virginia, 129 U.S. 114, 122-123 (1889). See United States v. Vuitch, 402 U. S., at 71. E. The appellants attack the residency requirement of the Georgia law, \u00a7\u00a7 26-1202 (b) (1) and (b) (2), as violative of the right to travel stressed in Shapiro v. Thompson, 394 U.S. 618, 629-631 (1969), and other cases. A requirement of this kind, of course, could be deemed to have some relationship to the availability of post-procedure medical care for the aborted patient. Nevertheless, we do not uphold the constitutionality of the residence requirement. It is not based on any policy of preserving state-supported facilities for Georgia residents, for the bar also applies to private hospitals and to privately retained physicians. There is no intimation, either, that Georgia facilities are utilized to capacity in caring for Georgia residents. Just as the Privileges and Immunities Clause, Const. Art. IV, \u00a7 2, protects persons who enter other States to ply their trade, Ward v. Maryland, 12 Wall. 418, 430 (1871); Blake v. McClung, 172 U.S. 239, 248-256 (1898), so must it protect persons who enter Georgia seeking the medical services that are available there. See Toomer v. Witsell, 334 U.S. 385, 396-397 (1948). A contrary holding would mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve. F. The last argument on this phase of the case is one that often is made, namely, that the Georgia system is violative of equal protection because it discriminates against the poor. The appellants do not urge that abortions *201 should be performed by persons other than licensed physicians, so we have no argument that because the wealthy can better afford physicians, the poor should have non-physicians made available to them. The appellants acknowledged that the procedures are \"nondiscriminatory in . . . express terms\" but they suggest that they have produced invidious discriminations. The District Court rejected this approach out of hand. 319 F. Supp., at 1056. It rests primarily on the accreditation and approval and confirmation requirements, discussed above, and on the assertion that most of Georgia's counties have no accredited hospital. We have set aside the accreditation, approval, and confirmation requirements, however, and with that, the discrimination argument collapses in all significant aspects.\nV The appellants complain, finally, of the District Court's denial of injunctive relief. A like claim was made in Roe v. Wade, ante, p. 113. We declined decision there insofar as injunctive relief was concerned, and we decline it here. We assume that Georgia's prosecutorial authorities will give full recognition to the judgment of this Court. In summary, we hold that the JCAH-accredited hospital provision and the requirements as to approval by the hospital abortion committee, as to confirmation by two independent physicians, and as to residence in Georgia are all violative of the Fourteenth Amendment. Specifically, the following portions of \u00a7 26-1202 (b), remaining after the District Court's judgment, are invalid: (1) Subsections (1) and (2). (2) That portion of Subsection (3) following the words \"[s]uch physician's judgment is reduced to writing.\" (3) Subsections (4) and (5). *202 The judgment of the District Court is modified accordingly and, as so modified, is affirmed. Costs are allowed to the appellants.\nAPPENDIX A TO OPINION OF THE COURT Criminal Code of Georgia (The italicized portions are those held unconstitutional by the District Court) CHAPTER 26-12. ABORTION. 26-1201. Criminal Abortion. Except as otherwise provided in section 26-1202, a person commits criminal abortion when he administers any medicine, drug or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion. 26-1202. Exception. (a) Section 26-1201 shall not apply to an abortion performed by a physician duly licensed to practice medicine and surgery pursuant to Chapter 84-9 or 84-12 of the Code of Georgia of 1933, as amended, based upon his best clinical judgment that an abortion is necessary because: (1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) The pregnancy resulted from forcible or statutory rape. (b) No abortion is authorized or shall be performed under this section unless each of the following conditions is met: (1) The pregnant woman requesting the abortion certifies in writing under oath and subject to the penalties *203 of false swearing to the physician who proposes to perform the abortion that she is a bona fide legal resident of the State of Georgia. (2) The physician certifies that he believes the woman is a bona fide resident of this State and that he has no information which should lead him to believe otherwise. (3) Such physician's judgment is reduced to writing and concurred in by at least two other physicians duly licensed to practice medicine and surgery pursuant to Chapter 84-9 of the Code of Georgia of 1933, as amended, who certify in writing that based upon their separate personal medical examinations of the pregnant woman, the abortion is, in their judgment, necessary because of one or more of the reasons enumerated above. (4) Such abortion is performed in a hospital licensed by the State Board of Health and accredited by the Joint Commission on Accreditation of Hospitals. (5) The performance of the abortion has been approved in advance by a committee of the medical staff of the hospital in which the operation is to be performed. This committee must be one established and maintained in accordance with the standards promulgated by the Joint Commission on the Accreditation of Hospitals, and its approval must be by a majority vote of a membership of not less than three members of the hospital's staff; the physician proposing to perform the operation may not be counted as a member of the committee for this purpose. (6) If the proposed abortion is considered necessary because the woman has been raped, the woman makes a written statement under oath, and subject to the penalties of false swearing, of the date, time and place of the rape and the name of the rapist, if known. There must be attached to this statement a certified copy of any report of the rape made by any law enforcement officer or agency and a statement by the solicitor general of the *204 judicial circuit where the rape occurred or allegedly occurred that, according to his best information, there is probable cause to believe that the rape did occur. (7) Such written opinions, statements, certificates, and concurrences are maintained in the permanent files of such hospital and are available at all reasonable times to the solicitor general of the judicial circuit in which the hospital is located. (8) A copy of such written opinions, statements, certificates, and concurrences is filed with the Director of the State Department of Public Health within 10 days after such operation is performed. (9) All written opinions, statements, certificates, and concurrences filed and maintained pursuant to paragraphs (7) and (8) of this subsection shall be confidential records and shall not be made available for public inspection at any time. (c) Any solicitor general of the judicial circuit in which an abortion is to be performed under this section, or any person who would be a relative of the child within the second degree of consanguinity, may petition the superior court of the county in which the abortion is to be performed for a declaratory judgment whether the performance of such abortion would violate any constitutional or other legal rights of the fetus. Such solicitor general may also petition such court for the purpose of taking issue with compliance with the requirements of this section. The physician who proposes to perform the abortion and the pregnant woman shall be respondents. The petition shall be heard expeditiously and if the court adjudges that such abortion would violate the constitutional or other legal rights of the fetus, the court shall so declare and shall restrain the physician from performing the abortion. (d) If an abortion is performed in compliance with this section, the death of the fetus shall not give rise to any claim for wrongful death. *205 (e) Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b) (5). A physician, or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person. 26-1203. Punishment. A person convicted of criminal abortion shall be punished by imprisonment for not less than one nor more than 10 years.\nAPPENDIX B TO OPINION OF THE COURT American Law Institute MODEL PENAL CODE Section 230.3. Abortion. (1) Unjustified Abortion. A person who purposely and unjustifiably terminates the pregnancy of another otherwise than by a live birth commits a felony of the third degree or, where the pregnancy has continued beyond the twenty-sixth week, a felony of the second degree. (2) Justifiable Abortion. A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. All *206 illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection. Justifiable abortions shall be performed only in a licensed hospital except in case of emergency when hospital facilities are unavailable. [Additional exceptions from the requirement of hospitalization may be incorporated here to take account of situations in sparsely settled areas where hospitals are not generally accessible.] (3) Physicians' Certificates; Presumption from Non-Compliance. No abortion shall be performed unless two physicians, one of whom may be the person performing the abortion, shall have certified in writing the circumstances which they believe to justify the abortion. Such certificate shall be submitted before the abortion to the hospital where it is to be performed and, in the case of abortion following felonious intercourse, to the prosecuting attorney or the police. Failure to comply with any of the requirements of this Subsection gives rise to a presumption that the abortion was unjustified. (4) Self-Abortion. A woman whose pregnancy has continued beyond the twenty-sixth week commits a felony of the third degree if she purposely terminates her own pregnancy otherwise than by a live birth, or if she uses instruments, drugs or violence upon herself for that purpose. Except as justified under Subsection (2), a person who induces or knowingly aids a woman to use instruments, drugs or violence upon herself for the purpose of terminating her pregnancy otherwise than by a live birth commits a felony of the third degree whether or not the pregnancy has continued beyond the twenty-sixth week. (5) Pretended Abortion. A person commits a felony of the third degree if, representing that it is his purpose to perform an abortion, he does an act adapted to cause abortion in a pregnant woman although the woman is in fact not pregnant, or the actor does not believe she is. *207 A person charged with unjustified abortion under Sub-section (1) or an attempt to commit that offense may be convicted thereof upon proof of conduct prohibited by this Subsection. (6) Distribution of Abortifacients. A person who sells, offers to sell, possesses with intent to sell, advertises, or displays for sale anything specially designed to terminate a pregnancy, or held out by the actor as useful for that purpose, commits a misdemeanor, unless: (a) the sale, offer or display is to a physician or druggist or to an intermediary in a chain of distribution to physicians or druggists; or (b) the sale is made upon prescription or order of a physician; or (c) the possession is with intent to sell as authorized in paragraphs (a) and (b); or (d) the advertising is addressed to persons named in paragraph (a) and confined to trade or professional channels not likely to reach the general public. (7) Section Inapplicable to Prevention of Pregnancy. Nothing in this Section shall be deemed applicable to the prescription, administration or distribution of drugs or other substances for avoiding pregnancy, whether by preventing implantation of a fertilized ovum or by any other method that operates before, at or immediately after fertilization. MR. CHIEF JUSTICE BURGER, concurring[*] I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using *208 the term health in its broadest medical context. See United States v. Vuitch, 402 U.S. 62, 71-72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts. In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH. I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand. *209 MR. JUSTICE DOUGLAS, concurring[*] While I join the opinion of the Court,[1] I add a few words.\nI The questions presented in the present cases go far beyond the issues of vagueness, which we considered in United States v. Vuitch, 402 U.S. 62. They involve the right of privacy, one aspect of which we considered in Griswold v. Connecticut, 381 U.S. 479, 484, when we held that various guarantees in the Bill of Rights create zones of privacy.[2] *210 The Griswold case involved a law forbidding the use of contraceptives. We held that law as applied to married people unconstitutional: \"We deal with a right of privacy older than the Bill of Rights\u2014older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.\" Id., at 486. The District Court in Doe held that Griswold and related cases \"establish a Constitutional right to privacy broad enough to encompass the right of a woman to terminate an unwanted pregnancy in its early stages, by obtaining an abortion.\" 319 F. Supp. 1048, 1054. The Supreme Court of California expressed the same view in People v. Belous,[3] 71 Cal. 2d 954, 963, 458 P.2d 194, 199. The Ninth Amendment obviously does not create federally enforceable rights. It merely says, \"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.\" But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of \"the Blessings of Liberty\" mentioned in the preamble to the Constitution. Many of them, in my view, come *211 within the meaning of the term \"liberty\" as used in the Fourteenth Amendment. First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality. These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions. See Terminiello v. Chicago, 337 U.S. 1; Roth v. United States, 354 U.S. 476, 508 (dissent); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697 (concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (Black, J., concurring, in which I joined). The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one's own beliefs, Watkins v. United States, 354 U.S. 178, 196-199, is protected by the First and the Fifth. The First Amendment grants the privacy of first-class mail, United States v. Van Leeuwen, 397 U.S. 249, 253. All of these aspects of the right of privacy are rights \"retained by the people\" in the meaning of the Ninth Amendment. Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of \"unreasonable searches and seizures\" and of \"probable cause.\" These rights are \"fundamental,\" and we have held that in order to support legislative action the statute must be narrowly and precisely drawn and that a \"compelling state interest\" must be shown in support of the limitation. E. g., Kramer v. Union Free School District, 395 U.S. 621; Shapiro v. Thompson, 394 U.S. 618; *212 Carrington v. Rash, 380 U.S. 89; Sherbert v. Verner, 374 U.S. 398; NAACP v. Alabama, 357 U.S. 449. The liberty to marry a person of one's own choosing, Loving v. Virginia, 388 U.S. 1; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535; the liberty to direct the education of one's children, Pierce v. Society of Sisters, 268 U.S. 510, and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this category.[4]*213 Only last Term in Eisenstadt v. Baird, 405 U.S. 438, another contraceptive case, we expanded the concept of Griswold by saying: \"It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.\" Id., at 453. This right of privacy was called by Mr. Justice Brandeis the right \"to be let alone.\" Olmstead v. United States, 277 U.S. 438, 478 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, \" `outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.' \" Kent v. Dulles, 357 U.S. 116, 126. Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf. These rights, though fundamental, are likewise subject to regulation on a showing of \"compelling state interest.\" We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, that walking, strolling, and wandering \"are historically part of the amenities of life as we have known them.\" As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29: \"There is, of course, a sphere within which the individual may assert the supremacy of his own will *214 and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.\" In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, the Court said, \"The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow.\" In Terry v. Ohio, 392 U.S. 1, 8-9, the Court, in speaking of the Fourth Amendment stated, \"This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.\" Katz v. United States, 389 U.S. 347, 350, emphasizes that the Fourth Amendment \"protects individual privacy against certain kinds of governmental intrusion.\" In Meyer v. Nebraska, 262 U.S. 390, 399, the Court said: \"Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.\" The Georgia statute is at war with the clear message of these cases\u2014that a woman is free to make the basic decision whether to bear an unwanted child. Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. For example, rejected applicants under the Georgia statute are required to endure the *215 discomforts of pregnancy; to incur the pain, higher mortality rate, and aftereffects of childbirth; to abandon educational plans; to sustain loss of income; to forgo the satisfactions of careers; to tax further mental and physical health in providing child care; and, in some cases, to bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legitimate family relationships.\nII Such reasoning is, however, only the beginning of the problem. The State has interests to protect. Vaccinations to prevent epidemics are one example, as Jacobson, supra, holds. The Court held that compulsory sterilization of imbeciles afflicted with hereditary forms of insanity or imbecility is another. Buck v. Bell, 274 U.S. 200. Abortion affects another. While childbirth endangers the lives of some women, voluntary abortion at any time and place regardless of medical standards would impinge on a rightful concern of society. The woman's health is part of that concern; as is the life of the fetus after quickening. These concerns justify the State in treating the procedure as a medical one. One difficulty is that this statute as construed and applied apparently does not give full sweep to the \"psychological as well as physical well-being\" of women patients which saved the concept \"health\" from being void for vagueness in United States v. Vuitch, 402 U. S., at 72. But, apart from that, Georgia's enactment has a constitutional infirmity because, as stated by the District Court, it \"limits the number of reasons for which an abortion may be sought.\" I agree with the holding of the District Court, \"This the State may not do, because such action unduly restricts a decision sheltered by the Constitutional right to privacy.\" 319 F. Supp., at 1056. The vicissitudes of life produce pregnancies which may be unwanted, or which may impair \"health\" in *216 the broad Vuitch sense of the term, or which may imperil the life of the mother, or which in the full setting of the case may create such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take. These hardships may be properly embraced in the \"health\" factor of the mother as appraised by a person of insight. Or they may be part of a broader medical judgment based on what is \"appropriate\" in a given case, though perhaps not \"necessary\" in a strict sense. The \"liberty\" of the mother, though rooted as it is in the Constitution, may be qualified by the State for the reasons we have stated. But where fundamental personal rights and liberties are involved, the corrective legislation must be \"narrowly drawn to prevent the supposed evil,\" Cantwell v. Connecticut, 310 U.S. 296, 307, and not be dealt with in an \"unlimited and indiscriminate\" manner. Shelton v. Tucker, 364 U.S. 479, 490. And see Talley v. California, 362 U.S. 60. Unless regulatory measures are so confined and are addressed to the specific areas of compelling legislative concern, the police power would become the great leveler of constitutional rights and liberties. There is no doubt that the State may require abortions to be performed by qualified medical personnel. The legitimate objective of preserving the mother's health clearly supports such laws. Their impact upon the woman's privacy is minimal. But the Georgia statute outlaws virtually all such operations\u2014even in the earliest stages of pregnancy. In light of modern medical evidence suggesting that an early abortion is safer healthwise than childbirth itself,[5] it cannot be seriously *217 urged that so comprehensive a ban is aimed at protecting the woman's health. Rather, this expansive proscription of all abortions along the temporal spectrum can rest only on a public goal of preserving both embryonic and fetal life. The present statute has struck the balance between the woman's and the State's interests wholly in favor of the latter. I am not prepared to hold that a State may equate, as Georgia has done, all phases of maturation preceding birth. We held in Griswold that the States may not preclude spouses from attempting to avoid the joinder of sperm and egg. If this is true, it is difficult to perceive any overriding public necessity which might attach precisely at the moment of conception. As Mr. Justice Clark has said:[6] \"To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity\u2014the known rather than the unknown. When sperm meets egg life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of *218 life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus.[7] This would not be the case if the fetus constituted human life.\" In summary, the enactment is overbroad. It is not closely correlated to the aim of preserving prenatal life. In fact, it permits its destruction in several cases, including pregnancies resulting from sex acts in which unmarried females are below the statutory age of consent. At the same time, however, the measure broadly proscribes aborting other pregnancies which may cause severe mental disorders. Additionally, the statute is overbroad because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth.\nIII Under the Georgia Act, the mother's physician is not the sole judge as to whether the abortion should be performed. Two other licensed physicians must concur in his judgment.[8] Moreover, the abortion must be performed in a licensed hospital;[9] and the abortion must be *219 approved in advance by a committee of the medical staff of that hospital.[10] Physicians, who speak to us in Doe through an amicus brief, complain of the Georgia Act's interference with their practice of their profession. The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship. It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy\u2014the right to care for one's health and person and to seek out a physician of one's own choice protected by the Fourteenth Amendment\u2014becomes only a matter of theory, not a reality, when a multiple-physician-approval system is mandated by the State. The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known. He is entitled to procedural due process before professional disciplinary sanctions may be imposed. See In re Ruffalo, 390 U.S. 544. Crucial here, however, is state-imposed control over the medical decision whether pregnancy should be interrupted. The good-faith decision of the patient's chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails. The right to seek advice on one's health and the right to place reliance on the physician of one's choice are *220 basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or controlled only by discretely drawn legislation that preserves the \"liberty\" and regulates only those phases of the problem of compelling legislative concern. The imposition by the State of group controls over the physician-patient relationship is not made on any medical procedure apart from abortion, no matter how dangerous the medical step may be. The oversight imposed on the physician and patient in abortion cases denies them their \"liberty,\" viz., their right of privacy, without any compelling, discernible state interest. Georgia has constitutional warrant in treating abortion as a medical problem. To protect the woman's right of privacy, however, the control must be through the physician of her choice and the standards set for his performance. The protection of the fetus when it has acquired life is a legitimate concern of the State. Georgia's law makes no rational, discernible decision on that score.[11] For under the Code, the developmental stage of the fetus is irrelevant when pregnancy is the result of rape, when the fetus will very likely be born with a permanent defect, or when a continuation of the pregnancy will endanger the life of the mother or permanently injure her health. When life is present is a question we do not try to resolve. While basically a question for medical experts, as stated by Mr. Justice Clark,[12] it is, of course, caught up in matters of religion and morality. In short, I agree with the Court that endangering the life of the woman or seriously and permanently injuring *221 her health are standards too narrow for the right of privacy that is at stake. I also agree that the superstructure of medical supervision which Georgia has erected violates the patient's right of privacy inherent in her choice of her own physician. MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.[*] At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons\u2014 convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother. With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers *222 and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs. It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women *223 whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court. Likewise, because Georgia may constitutionally forbid abortions to putative mothers who, like the plaintiff in this case, do not fall within the reach of \u00a7 26-1202 (a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case. MR. JUSTICE REHNQUIST, dissenting. The holding in Roe v. Wade, ante, p. 113, that state abortion laws can withstand constitutional scrutiny only if the State can demonstrate a compelling state interest, apparently compels the Court's close scrutiny of the various provisions in Georgia's abortion statute. Since, as indicated by my dissent in Wade, I view the compelling-state-interest standard as an inappropriate measure of the constitutionality of state abortion laws, I respectfully dissent from the majority's holding. NOTES [*] Briefs of amici curiae were filed by Roy Lucas for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Delores V. Horan for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G. Zarky for the American Association of University Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; by Robert E. Dunne for Robert L. Sassone; and by Ferdinand Buckley pro se. [1] The portions italicized in Appendix A are those held unconstitutional by the District Court. [2] Brief for Appellants 25 n. 5; Tr. of Oral Arg. 9. [3] See Roe v. Wade, ante, p. 113, at 140 n. 37. [4] The pertinent provisions of the 1876 statute were: \"Section I. Be it enacted, etc., That from and after the passage of this Act, the willful killing of an unborn child, so far developed as to be ordinarily called `quick,' by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be guilty of a felony, and punishable by death or imprisonment for life, as the jury trying the case may recommend. \"Sec. II. Be it further enacted, That every person who shall administer to any woman pregnant with a child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or mother be thereby produced, be declared guilty of an assault with intent to murder. \"Sec. III. Be it further enacted, That any person who shall wilfully administer to any pregnant woman any medicine, drug or substance, or anything whatever, or shall employ any instrument or means whatever, with intent thereby to procure the miscarriage or abortion of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished as prescribed in section 4310 of the Revised Code of Georgia.\" It should be noted that the second section, in contrast to the first, made no specific reference to quickening. The section was construed, however, to possess this line of demarcation. Taylor v. State, 105 Ga. 846, 33 S.E. 190 (1899). [5] In contrast with the ALI model, the Georgia statute makes no specific reference to pregnancy resulting from incest. We were assured by the State at reargument that this was because the statute's reference to \"rape\" was intended to include incest. Tr. of Oral Rearg. 32. [6] Appellants by their complaint, App. 7, allege that the name is a pseudonym. [7] In answers to interrogatories, Doe stated that her application for an abortion was approved at Georgia Baptist Hospital on May 5, 1970, but that she was not approved as a charity patient there and had no money to pay for an abortion. App. 64. [8] What we decide today obviously has implications for the issues raised in the defendants' appeal pending in the Fifth Circuit. [9] Tr. of Oral Arg. 21-22. [10] Brief for Appellants 25. [11] We were advised at reargument, Tr. of Oral Rearg. 10, that only 54 of Georgia's 159 counties have a JCAH-accredited hospital. [12] Since its founding, JCAH has pursued the \"elusive goal\" of defining the \"optimal setting\" for \"quality of service in hospitals.\" JCAH, Accreditation Manual for Hospitals, Foreword (Dec. 1970). The Manual's Introduction states the organization's purpose to establish standards and conduct accreditation programs that will afford quality medical care \"to give patients the optimal benefits that medical science has to offer.\" This ambitious and admirable goal is illustrated by JCAH's decision in 1966 \"[t]o raise and strengthen the standards from their present level of minimum essential to the level of optimum achievable . . . .\" Some of these \"optimum achievable\" standards required are: disclosure of hospital ownership and control; a dietetic service and written dietetic policies; a written disaster plan for mass emergencies; a nuclear medical services program; facilities for hematology, chemistry, microbiology, clinical microscopy, and sero-immunology; a professional library and document delivery service; a radiology program; a social services plan administered by a qualified social worker; and a special care unit. [13] \"The Joint Commission neither advocates nor opposes any particular position with respect to elective abortions.\" Letter dated July 9, 1971, from John I. Brewer, M. D., Commissioner, JCAH, to the Rockefeller Foundation. Brief for amici curiae, American College of Obstetricians and Gynecologists et al., p. A-3. [14] See Roe v. Wade, ante, at 146-147, n. 40. [15] Some state statutes do not have the JCAH-accreditation requirement. Alaska Stat. \u00a7 11.15.060 (1970); Hawaii Rev. Stat. \u00a7 453-16 (Supp. 1971); N. Y. Penal Code \u00a7 125.05, subd. 3 (Supp. 1972-1973). Washington has the requirement but couples it with the alternative of \"a medical facility approved . . . by the state board of health.\" Wash. Rev. Code \u00a7 9.02.070 (Supp. 1972). Florida's new statute has a similar provision. Law of Apr. 13, 1972, c. 72-196, \u00a7 1 (2). Others contain the specification. Ark. Stat. Ann. \u00a7\u00a7 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety Code \u00a7\u00a7 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. \u00a7\u00a7 40-2-50 to 40-2-53 (Cum. Supp. 1967); Kan. Stat. Ann. \u00a7 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, \u00a7\u00a7 137-139 (1971). Cf. Del. Code Ann., Tit. 24, \u00a7\u00a7 1790-1793 (Supp. 1972), specifying \"a nationally recognized medical or hospital accreditation authority,\" \u00a7 1790 (a). [16] L. Baker & M. Freeman, Abortion Surveillance at Grady Memorial Hospital Center for Disease Control (June and July 1971) (U. S. Dept. of HEW, Public Health Service). [*] [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.] [*] [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.] [1] I disagree with the dismissal of Dr. Hallford's complaint in intervention in Roe v. Wade, ante, p. 113, because my disagreement with Younger v. Harris, 401 U.S. 37, revealed in my dissent in that case, still persists and extends to the progeny of that case. [2] There is no mention of privacy in our Bill of Rights but our decisions have recognized it as one of the fundamental values those amendments were designed to protect. The fountainhead case is Boyd v. United States, 116 U.S. 616, holding that a federal statute which authorized a court in tax cases to require a taxpayer to produce his records or to concede the Government's allegations offended the Fourth and Fifth Amendments. Mr. Justice Bradley, for the Court, found that the measure unduly intruded into the \"sanctity of a man's home and the privacies of life.\" Id., at 630. Prior to Boyd, in Kilbourn v. Thompson, 103 U.S. 168, 190, Mr. Justice Miller held for the Court that neither House of Congress \"possesses the general power of making inquiry into the private affairs of the citizen.\" Of Kilbourn, Mr. Justice Field later said, \"This case will stand for all time as a bulwark against the invasion of the right of the citizen to protection in his private affairs against the unlimited scrutiny of investigation by a congressional committee.\" In re Pacific Railway Comm'n, 32 F. 241, 253 (cited with approval in Sinclair v. United States, 279 U.S. 263, 293). Mr. Justice Harlan, also speaking for the Court, in ICC v. Brimson, 154 U.S. 447, 478, thought the same was true of administrative inquiries, saying that the Constitution did not permit a \"general power of making inquiry into the private affairs of the citizen.\" In a similar vein were Harriman v. ICC, 211 U.S. 407; United States v. Louisville & Nashville R. Co., 236 U.S. 318, 335; and FTC v. American Tobacco Co., 264 U.S. 298. [3] The California abortion statute, held unconstitutional in the Belous case, made it a crime to perform or help perform an abortion \"unless the same is necessary to preserve [the mother's] life.\" 71 Cal. 2d, at 959, 458 P. 2d, at 197. [4] My Brother STEWART, writing in Roe v. Wade, supra, says that our decision in Griswold reintroduced substantive due process that had been rejected in Ferguson v. Skrupa, 372 U.S. 726. Skrupa involved legislation governing a business enterprise; and the Court in that case, as had Mr. Justice Holmes on earlier occasions, rejected the idea that \"liberty\" within the meaning of the Due Process Clause of the Fourteenth Amendment was a vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats. Griswold involved legislation touching on the marital relation and involving the conviction of a licensed physician for giving married people information concerning contraception. There is nothing specific in the Bill of Rights that covers that item. Nor is there anything in the Bill of Rights that in terms protects the right of association or the privacy in one's association. Yet we found those rights in the periphery of the First Amendment. NAACP v. Alabama, 357 U.S. 449, 462. Other peripheral rights are the right to educate one's children as one chooses, Pierce v. Society of Sisters, 268 U.S. 510, and the right to study the German language, Meyer v. Nebraska, 262 U.S. 390. These decisions, with all respect, have nothing to do with substantive due process. One may think they are not peripheral to other rights that are expressed in the Bill of Rights. But that is not enough to bring into play the protection of substantive due process.\nThere are, of course, those who have believed that the reach of due process in the Fourteenth Amendment included all of the Bill of Rights but went further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson v. California, 332 U.S. 46, 123, 124 (dissenting opinion). Perhaps they were right; but it is a bridge that neither I nor those who joined the Court's opinion in Griswold crossed. [5] Many studies show that it is safer for a woman to have a medically induced abortion than to bear a child. In the first 11 months of operation of the New York abortion law, the mortality rate associated with such operations was six per 100,000 operations. Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 1971) (U. S. Dept. of HEW, Public Health Service). On the other hand, the maternal mortality rate associated with childbirths other than abortions was 18 per 100,000 live births. Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969). See also Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (Apr. 1961); Kolblova, Legal Abortion in Czechoslovakia, 196 J. A. M. A. 371 (Apr. 1966); Mehland, Combating Illegal Abortion in the Socialist Countries of Europe, 13 World Med. J. 84 (1966). [6] Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 9-10 (1969). [7] In Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617, the California Supreme Court held in 1970 that the California murder statute did not cover the killing of an unborn fetus, even though the fetus be \"viable,\" and that it was beyond judicial power to extend the statute to the killing of an unborn. It held that the child must be \"born alive before a charge of homicide can be sustained.\" Id., at 639, 470 P.2d, at 630. [8] See Ga. Code Ann. \u00a7 26-1202 (b) (3). [9] See id., \u00a7 26-1202 (b) (4). [10] Id., \u00a7 26-1202 (b) (5). [11] See Rochat, Tyler, & Schoenbucher, An Epidemiological Analysis of Abortion in Georgia, 61 Am. J. of Public Health 543 (1971). [12] Supra, n. 6, at 10. [*] [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.]","meta":{"dup_signals":{"dup_doc_count":1480,"dup_dump_count":95,"dup_details":{"2023-40":4,"2023-23":2,"2023-06":4,"2022-49":3,"2022-40":2,"2022-21":1,"2022-05":3,"2021-49":3,"2021-43":2,"2021-39":2,"2021-25":2,"2021-21":3,"2021-17":3,"2021-04":4,"2020-50":2,"2020-45":5,"2020-34":2,"2020-29":4,"2020-16":7,"2020-05":4,"2019-51":4,"2019-47":3,"2019-39":5,"2019-30":4,"2019-22":8,"2019-18":6,"2019-13":4,"2019-09":5,"2018-51":7,"2018-47":5,"2018-43":4,"2018-34":3,"2018-26":4,"2018-22":3,"2018-13":4,"2018-05":4,"2017-51":2,"2017-47":3,"2017-43":10,"2017-39":8,"2017-34":2,"2017-30":6,"2017-26":5,"2017-22":16,"2017-17":6,"2017-09":43,"2017-04":9,"2016-50":8,"2016-44":22,"2016-40":22,"2016-36":22,"2016-30":21,"2016-26":3,"2016-22":3,"2016-18":3,"2016-07":43,"2015-48":45,"2015-40":37,"2015-35":50,"2015-32":46,"2015-27":45,"2015-22":23,"2015-14":46,"2014-52":53,"2014-49":63,"2014-42":103,"2014-41":72,"2014-35":72,"2014-23":77,"2014-15":73,"2024-26":1,"2024-18":1,"2024-10":3,"2017-13":9,"2015-18":50,"2015-11":52,"2015-06":51,"2014-10":33,"2013-48":31,"2013-20":17,"2023-50":1,"2022-27":3,"2021-31":1,"2021-10":3,"2020-40":1,"2020-24":2,"2020-10":5,"2019-43":1,"2019-35":1,"2019-26":4,"2019-04":1,"2018-39":3,"2018-30":2,"2018-17":5,"2018-09":2}}},"subset":"freelaw"}
{"text":"425 U.S. 748 (1976) VIRGINIA STATE BOARD OF PHARMACY ET AL. v. VIRGINIA CITIZENS CONSUMER COUNCIL, INC., ET AL. No. 74-895. Supreme Court of United States. Argued November 11, 1975. Decided May 24, 1976. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. *749 Anthony F. Troy, Chief Deputy Attorney General of Virginia, argued the cause for appellants. With him on the brief were Andrew P. Miller, Attorney General, and D. Patrick Lacy, Jr., Deputy Attorney General. Alan B. Morrison argued the cause and filed a brief for appellees.[*] MR. JUSTICE BLACKMUN delivered the opinion of the Court. The plaintiff-appellees in this case attack, as violative of the First and Fourteenth Amendments,[1] that portion of \u00a7 54-524.35 of Va. Code Ann. (1974), which provides that a pharmacist licensed in Virginia is guilty of unprofessional *750 conduct if he \"(3) publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms . . . for any drugs which may be dispensed only by prescription.\"[2] The three-judge District Court declared the quoted portion of the statute \"void and of no effect,\" Jurisdictional Statement, App. 1, and enjoined the defendant-appellants, the Virginia State Board of Pharmacy and the individual members of that Board, from enforcing it. 373 F. Supp. 683 (ED Va. 1974). We noted probable jurisdiction of the appeal. 420 U. S. 971 (1975).\nI Since the challenged restraint is one that peculiarly concerns the licensed pharmacist in Virginia, we begin with a description of that profession as it exists under Virginia law. The \"practice of pharmacy\" is statutorily declared to be \"a professional practice affecting the public health, safety and welfare,\" and to be \"subject to regulation and control in the public interest.\" Va. Code Ann. \u00a7 54-524.2 (a) (1974).[3] Indeed, the practice is subject to extensive *751 regulation aimed at preserving high professional standards. The regulatory body is the appellant Virginia State Board of Pharmacy. The Board is broadly charged by statute with various responsibilities, including the \"[m]aintenance of the quality, quantity, integrity, safety and efficacy of drugs or devices distributed, dispensed or administered.\" \u00a7 54-524.16 (a). It also is to concern itself with \"[m]aintaining the integrity of, and public confidence in, the profession and improving the delivery of quality pharmaceutical services to the citizens of Virginia.\" \u00a7 54-524.16 (d). The Board is empowered to \"make such bylaws, rules and regulations. . . as may be necessary for the lawful exercise of its powers.\" \u00a7 54-524.17. The Board is also the licensing authority. It may issue a license, necessary for the practice of pharmacy in the State, only upon evidence that the applicant is \"of good moral character,\" is a graduate in pharmacy of a school approved by the Board, and has had \"a suitable period of experience [the period required not to exceed 12 months] acceptable to the Board.\" \u00a7 54-524.21. The applicant must pass the examination prescribed by the Board. Ibid. One approved school is the School of Pharmacy of the Medical College of Virginia, where the curriculum is for three years following two years of college. Prescribed prepharmacy courses, such as biology and chemistry, are to be taken in college, and study requirements at the school itself include courses in organic chemistry, biochemistry, comparative anatomy, physiology, and pharmacology. Students are also trained in the ethics of the profession, and there is some clinical experience in the school's hospital pharmacies and in the medical center operated by the Medical College. This *752 is \"a rigid, demanding curriculum in terms of what the pharmacy student is expected to know about drugs.\"[4] Once licensed, a pharmacist is subject to a civil monetary penalty, or to revocation or suspension of his license, if the Board finds that he \"is not of good moral character,\" or has violated any of a number of stated professional standards (among them that he not be \"negligent in the practice of pharmacy\" or have engaged in \"fraud or deceit upon the consumer . . . in connection with the practice of pharmacy\"), or is guilty of \"unprofessional conduct.\" \u00a7 54-524.22:1. \"Unprofessional conduct\" is specifically defined in \u00a7 54-524.35, n. 2, supra, the third numbered phrase of which relates to advertising of the price for any prescription drug, and is the subject of this litigation. Inasmuch as only a licensed pharmacist may dispense prescription drugs in Virginia, \u00a7 54-524.48,[5] advertising or other affirmative dissemination of prescription drug price information is effectively forbidden in the State. Some pharmacies refuse even to quote prescription drug prices over the telephone. The Board's position, however, is that this would not constitute an unprofessional publication.[6] It is clear, nonetheless, that all advertising of such prices, in the normal sense, is forbidden. The prohibition does not extend to nonprescription drugs, but neither is it confined to prescriptions that the pharmacist compounds himself. Indeed, about 95% of all prescriptions now are filled with dosage forms prepared by the pharmaceutical manufacturer.[7] *753 II This is not the first challenge to the constitutionality of \u00a7 54-524.35 and what is now its third-numbered phrase. Shortly after the phrase was added to the statute in 1968,[8] a suit seeking to enjoin its operation was instituted by a drug retailing company and one of its pharmacists. Although the First Amendment was invoked, the challenge appears to have been based primarily on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In any event, the prohibition on drug price advertising was upheld. Patterson Drug Co. v. Kingery, 305 F. Supp. 821 (WD Va. 1969). The threejudge court did find that the dispensation of prescription drugs \"affects the public health, safety and welfare.\" Id., at 824-825. No appeal was taken. The present, and second, attack on the statute is one made not by one directly subject to its prohibition, that is, a pharmacist, but by prescription drug consumers who claim that they would greatly benefit if the prohibition were lifted and advertising freely allowed. The plaintiffs are an individual Virginia resident who suffers from diseases that require her to take prescription drugs on a daily basis,[9] and two nonprofit organizations.[10] Their *754 claim is that the First Amendment entitles the user of prescription drugs to receive information that pharmacists wish to communicate to them through advertising and other promotional means, concerning the prices of such drugs. Certainly that information may be of value. Drug prices in Virginia, for both prescription and nonprescription items, strikingly vary from outlet to outlet even within the same locality. It is stipulated, for example, that in Richmond \"the cost of 40 Achromycin tablets ranges from $2.59 to $6.00, a difference of 140% [sic],\" and that in the Newport News-Hampton area the cost of tetracycline ranges from $1.20 to $9.00, a difference of 650%.[11] The District Court seized on the identity of the plaintiff-appellees as consumers as a feature distinguishing the *755 present case from Patterson Drug Co. v. Kingery, supra. Because the unsuccessful plaintiffs in that earlier case were pharmacists, the court said, \"theirs was a prima facie commercial approach,\" 373 F. Supp., at 686. The present plaintiffs, on the other hand, were asserting an interest in their own health that was \"fundamentally deeper than a trade consideration.\" Ibid. In the District Court's view, the expression in Valentine v. Chrestensen, 316 U. S. 52, 54-55 (1942), to the effect that \"purely commercial advertising\" is not protected had been tempered, by later decisions of this Court, to the point that First Amendment interests in the free flow of price information could be found to outweigh the countervailing interests of the State. The strength of the interest in the free flow of drug price information was borne out, the court felt, by the fact that three States by court decision had struck down their prohibitions on drug price advertising. Florida Board of Pharmacy v. Webb's City, Inc., 219 So. 2d 681 (Fla. 1969); Maryland Board of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103. 311 A. 2d 242 (1973); Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A. 2d 487 (1971).[12] The District Court recognized that this Court had upheld\u2014against federal constitutional challenges other than on First Amendment grounds\u2014state restrictions *756 on the advertisement of prices for optometrists' services, Head v. New Mexico Board, 374 U. S. 424 (1963), for eyeglass frames, Williamson v. Lee Optical Co., 348 U. S. 483 (1955), and for dentists' services, Semler v. Dental Examiners, 294 U. S. 608 (1935).[13] The same dangers of abuse and deception were not thought to be present, however, when the advertised commodity was prescribed by a physician for his individual patient and was dispensed by a licensed pharmacist. The Board failed to justify the statute adequately, and it had to fall. 373 F. Supp., at 686-687.\nIII The question first arises whether, even assuming that First Amendment protection attaches to the flow of drug price information, it is a protection enjoyed by the appellees as recipients of the information, and not solely, if at all, by the advertisers themselves who seek to disseminate that information. Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here,[14] the protection afforded is to the communication, to its source and to its recipients both. This is clear from the decided cases. In Lamont v. Postmaster General, 381 U. S. 301 (1965), the Court upheld the First Amendment rights of citizens to receive political publications sent from abroad. *757 More recently, in Kleindienst v. Mandel, 408 U. S. 753, 762-763 (1972), we acknowledged that this Court has referred to a First Amendment right to \"receive information and ideas,\" and that freedom of speech \" `necessarily protects the right to receive.' \" And in Procunier v. Martinez, 416 U. S. 396, 408-409 (1974), where censorship of prison inmates' mail was under examination, we thought it unnecessary to assess the First Amendment rights of the inmates themselves, for it was reasoned that such censorship equally infringed the rights of noninmates to whom the correspondence was addressed. There are numerous other expressions to the same effect in the Court's decisions. See, e. g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Stanley v. Georgia, 394 U. S. 557, 564 (1969); Griswold v. Connecticut, 381 U. S. 479, 482 (1965); Marsh v. Alabama, 326 U. S. 501, 505 (1946); Thomas v. Collins, 323 U. S. 516, 534 (1945); Martin v. Struthers, 319 U. S. 141, 143 (1943). If there is a right to advertise, there is a reciprocal right to receive the advertising, and it may be asserted by these appellees.[15] *758 IV The appellants contend that the advertisement of prescription drug prices is outside the protection of the First Amendment because it is \"commercial speech.\" There can be no question that in past decisions the Court has given some indication that commercial speech is unprotected. In Valentine v. Chrestensen, supra, the Court upheld a New York statute that prohibited the distribution of any \"handbill, circular . . . or other advertising matter whatsoever in or upon any street.\" The Court concluded that, although the First Amendment would forbid the banning of all communication by handbill in the public thoroughfares, it imposed \"no such restraint on government as respect purely commercial advertising.\" 316 U. S., at 54. Further support for a \"commercial speech\" exception to the First Amendment may perhaps be found in Breard v. Alexandria, 341 U. S. 622 (1951), where the Court upheld a conviction for violation of an ordinance prohibiting door-to-door solicitation of magazine subscriptions. The Court reasoned: \"The selling . . . brings into the transaction a commercial feature,\" and it distinguished Martin v. Struthers, supra, where it had reversed a conviction for door-to-door distribution of leaflets publicizing a religious meeting, as a case involving \"no element of the commercial.\" 341 U. S., at 642-643. Moreover, the Court several times has stressed that communications to which First Amendment protection was given were not \"purely commercial.\" New York Times Co. v. Sullivan, 376 U. S. 254, 266 *759 (1964); Thomas v. Collins, 323 U. S., at 533; Murdock v. Pennsylvania, 319 U. S. 105, 111 (1943); Jamison v. Texas, 318 U. S. 413, 417 (1943). Since the decision in Breard, however, the Court has never denied protection on the ground that the speech in issue was \"commercial speech.\" That simplistic approach, which by then had come under criticism or was regarded as of doubtful validity by Members of the Court,[16] was avoided in Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376 (1973). There the Court upheld an ordinance prohibiting newspapers from listing employment advertisements in columns according to whether male or female employees were sought to be hired. The Court, to be sure, characterized the advertisements as \"classic examples of commercial speech,\" id., at 385, and a newspaper's printing of the advertisements as of the same character. The Court, however, upheld the ordinance on the ground that the restriction it imposed was permissible because the discriminatory hirings proposed by the advertisements, and by their newspaper layout, were themselves illegal. Last Term, in Bigelow v. Virginia, 421 U. S. 809 (1975), the notion of unprotected \"commercial speech\" all but passed from the scene. We reversed a conviction for violation of a Virginia statute that made the circulation of any publication to encourage or promote the *760 processing of an abortion in Virginia a misdemeanor. The defendant had published in his newspaper the availability of abortions in New York. The advertisement in question, in addition to announcing that abortions were legal in New York, offered the services of a referral agency in that State. We rejected the contention that the publication was unprotected because it was commercial. Chrestensen's continued validity was questioned, and its holding was described as \"distinctly a limited one\" that merely upheld \"a reasonable regulation of the manner in which commercial advertising could be distributed.\" 421 U. S., at 819. We concluded that \"the Virginia courts erred in their assumptions that advertising, as such, was entitled to no First Amendment protection,\" and we observed that the \"relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.\" Id., at 825-826. Some fragment of hope for the continuing validity of a \"commercial speech\" exception arguably might have persisted because of the subject matter of the advertisement in Bigelow. We noted that in announcing the availability of legal abortions in New York, the advertisement \"did more than simply propose a commercial transaction. It contained factual material of clear `public interest.' \" Id., at 822. And, of course, the advertisement related to activity with which, at least in some respects, the State could not interfere. See Roe v. Wade, 410 U. S. 113 (1973); Doe v. Bolton, 410 U. S. 179 (1973). Indeed, we observed: \"We need not decide in this case the precise extent to which the First Amendment permits regulation of advertising that is related to activities the State may legitimately regulate or even prohibit.\" 421 U. S., at 825. Here, in contrast, the question whether there is a First Amendment exception for \"commercial speech\" is *761 squarely before us. Our pharmacist does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters. The \"idea\" he wishes to communicate is simply this: \"I will sell you the X prescription drug at the Y price.\" Our question, then, is whether this communication is wholly outside the protection of the First Amendment.\nV We begin with several propositions that already are settled or beyond serious dispute. It is clear, for example, that speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another. Buckley v. Valeo, 424 U. S. 1, 35-59 (1976); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S., at 384; New York Times Co. v. Sullivan, 376 U. S., at 266. Speech likewise is protected even though it is carried in a form that is \"sold\" for profit, Smith v. California, 361 U. S. 147, 150 (1959) (books); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501 (1952) (motion pictures); Murdock v. Pennsylvania, 319 U. S., at 111 (religious literature), and even though it may involve a solicitation to purchase or otherwise pay or contribute money. New York Times Co. v. Sullivan, supra; NAACP v. Button, 371 U. S. 415, 429 (1963); Jamison v. Texas, 318 U. S., at 417; Cantwell v. Connecticut, 310 U. S. 296, 306-307 (1940). If there is a kind of commercial speech that lacks all First Amendment protection, therefore, it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject. No one would contend that our pharmacist may be prevented from being heard on *762 the subject of whether, in general, pharmaceutical prices should be regulated, or their advertisement forbidden. Nor can it be dispositive that a commercial advertisement is noneditorial, and merely reports a fact. Purely factual matter of public interest may claim protection. Bigelow v. Virginia, 421 U. S., at 822; Thornhill v. Alabama, 310 U. S. 88, 102 (1940). Our question is whether speech which does \"no more than propose a commercial transaction,\" Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S., at 385, is so removed from any \"exposition of ideas,\" Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942), and from \" `truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,' \" Roth v. United States, 354 U. S. 476, 484 (1957), that it lacks all protection. Our answer is that it is not. Focusing first on the individual parties to the transaction that is proposed in the commercial advertisement, we may assume that the advertiser's interest is a purely economic one. That hardly disqualifies him from protection under the First Amendment. The interests of the Contestants in a labor dispute are primarily economic, but it has long been settled that both the employee and the employer are protected by the First Amendment when they express themselves on the merits of the dispute in order to influence its outcome. See e. g., NLRB v. Gissel Packing Co., 395 U. S. 575, 617-618 (1969); NLRB v. Virginia Electric & Power Co., 314 U. S. 469, 477 (1941); AFL v. Swing, 312 U. S. 321, 325-326 (1941); Thornhill v. Alabama, 310 U. S., at 102. We know of no requirement that, in order to avail themselves of First Amendment protection, the parties to a labor dispute need address themselves to the merits of unionism in general *763 or to any subject beyond their immediate dispute.[17] It was observed in Thornhill that \"the practices in a single factory may have economic repercussions upon a whole region and affect widespread systems of marketing.\" Id., at 103. Since the fate of such a \"single factory\" could as well turn on its ability to advertise its product as on the resolution of its labor difficulties, we see no satisfactory distinction between the two kinds of speech. As to the particular consumer's interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate. Appellees' case in this respect is a convincing one. Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent.[18] When drug prices *764 vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities. Generalizing, society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely \"commercial,\" may be of general public interest. The facts of decided cases furnish illustrations: advertisements stating that referral services for legal abortions are available, Bigelow v. Virginia, supra; that a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, see Fur Information & Fashion Council, Inc. v. E. F. Timme & Son, 364 F. Supp. 16 (SDNY 1973); and that a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs, cf. Chicago Joint Board v. Chicago Tribune Co., 435 F. 2d 470 (CA7 1970), cert. denied, 402 U. S. 973 (1971). Obviously, not all commercial messages contain the same or even a very great public interest element. There are few to which such an element, however, could not be added. Our pharmacist, for example, could cast himself as a commentator on store-to-store disparities *765 in drug prices, giving his own and those of a competitor as proof. We see little point in requiring him to do so, and little difference if he does not. Moreover, there is another consideration that suggests that no line between publicly \"interesting\" or \"important\" commercial advertising and the opposite kind could ever be drawn. Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. See Dun & Bradstreet, Inc. v. Grove, 404 U. S. 898, 904-906 (1971) (Douglas, J., dissenting from denial of certiorari). See also FTC v. Procter & Gamble Co., 386 U. S. 568, 603-604 (1967) (Harlan, J., concurring). And if it is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered. Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decisionmaking in a democracy,[19] we could not say that the free flow of information does not serve that goal.[20] *766 Arrayed against these substantial individual and societal interests are a number of justifications for the advertising ban. These have to do principally with maintaining a high degree of professionalism on the part of licensed pharmacists.[21] Indisputably, the State has a strong interest in maintaining that professionalism. It is exercised in a number of ways for the consumer's benefit. There is the clinical skill involved in the compounding of drugs, although, as has been noted, these now make up only a small percentage of the prescriptions filled. Yet, even with respect to manufacturer-prepared compounds, there is room for the pharmacist *767 to serve his customer well or badly. Drugs kept too long on the shelf may lose their efficacy or become adulterated. They can be packaged for the user in such a way that the same results occur. The expertise of the pharmacist may supplement that of the prescribing physician, if the latter has not specified the amount to be dispensed or the directions that are to appear on the label. The pharmacist, a specialist in the potencies and dangers of drugs, may even be consulted by the physician as to what to prescribe. He may know of a particular antagonism between the prescribed drug and another that the customer is or might be taking, or with an allergy the customer may suffer. The pharmacist himself may have supplied the other drug or treated the allergy. Some pharmacists, concededly not a large number, \"monitor\" the health problems and drug consumptions of customers who come to them repeatedly.[22] A pharmacist who has a continuous relationship with his customer is in the best position, of course, to exert professional skill for the customer's protection. Price advertising, it is argued, will place in jeopardy the pharmacist's expertise and, with it, the customer's health. It is claimed that the aggressive price competition that will result from unlimited advertising will make it impossible for the pharmacist to supply professional services in the compounding, handling, and dispensing *768 of prescription drugs. Such services are time consuming and expensive; if competitors who economize by eliminating them are permitted to advertise their resulting lower prices, the more painstaking and conscientious pharmacist will be forced either to follow suit or to go out of business. It is also claimed that prices might not necessarily fall as a result of advertising. If one pharmacist advertises, others must, and the resulting expense will inflate the cost of drugs. It is further claimed that advertising will lead people to shop for their prescription drugs among the various pharmacists who offer the lowest prices, and the loss of stable pharmacist-customer relationships will make individual attention\u2014and certainly the practice of monitoring\u2014impossible. Finally, it is argued that damage will be done to the professional image of the pharmacist. This image, that of a skilled and specialized craftsman, attracts talent to the profession and reinforces the better habits of those who are in it. Price advertising, it is said, will reduce the pharmacist's status to that of a mere retailer.[23] The strength of these proffered justifications is greatly undermined by the fact that high professional standards, to a substantial extent, are guaranteed by the close regulation to which pharmacists in Virginia are subject. And this case concerns the retail sale by the pharmacist more than it does his professional standards. Surely, any pharmacist guilty of professional dereliction that actually endangers his customer will promptly lose his *769 license. At the same time, we cannot discount the Board's justifications entirely. The Court regarded justifications of this type sufficient to sustain the advertising bans challenged on due process and equal protection grounds in Head v. New Mexico Board, supra; Williamson v. Lee Optical Co., supra; and Semler v. Dental Examiners, supra. The challenge now made, however, is based on the First Amendment. This casts the Board's justifications in a different light, for on close inspection it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance. The advertising ban does not directly affect professional standards one way or the other. It affects them only through the reactions it is assumed people will have to the free flow of drug price information. There is no claim that the advertising ban in any way prevents the cutting of corners by the pharmacist who is so inclined. That pharmacist is likely to cut corners in any event. The only effect the advertising ban has on him is to insulate him from price competition and to open the way for him to make a substantial, and perhaps even excessive, profit in addition to providing an inferior service. The more painstaking pharmacist is also protected but, again, it is a protection based in large part on public ignorance. It appears to be feared that if the pharmacist who wishes to provide low cost, and assertedly low quality, services is permitted to advertise, he will be taken up on his offer by too many unwitting customers. They will choose the low-cost, low-quality service and drive the \"professional\" pharmacist out of business. They will respond only to costly and excessive advertising, and end up paying the price. They will go from one pharmacist to another, following the discount, and destroy the pharmacist-customer relationship. They will lose respect for *770 the profession because it advertises. All this is not in their best interests, and all this can be avoided if they are not permitted to know who is charging what. There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. If they are truly open, nothing prevents the \"professional\" pharmacist from marketing his own assertedly superior product, and contrasting it with that of the low-cost, high-volume prescription drug retailer. But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. Cf. Parker v. Brown, 317 U. S. 341 (1943). But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for suppressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is. We so hold.\nVI In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulation are surely permissible. We mention a few only to make clear that they are not before us and therefore are not foreclosed by this case. *771 There is no claim, for example, that the prohibition on prescription drug price advertising is a mere time, place, and manner restriction. We have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information. Compare Grayned v. City of Rockford, 408 U. S. 104, 116 (1972); United States v. O'Brien, 391 U. S. 367, 377 (1968); and Kovacs v. Cooper, 336 U. S. 77, 85-87 (1949), with Buckley v. Valeo, 424 U. S. 1; Erznoznik v. City of Jacksonville, 422 U. S. 205, 209 (1975); Cantwell v. Connecticut, 310 U. S., at 304-308; and Saia v. New York, 334 U. S. 558, 562 (1948). Whatever may be the proper bounds of time, place, and manner restrictions on commercial speech, they are plainly exceeded by this Virginia statute, which singles out speech of a particular content and seeks to prevent its dissemination completely. Nor is there any claim that prescription drug price advertisements are forbidden because they are false or misleading in any way. Untruthful speech, commercial or otherwise, has never been protected for its own sake. Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974); Konigsberg v. State Bar, 366 U. S. 36, 49, and n. 10 (1961). Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem.[24] The First Amendment, *772 as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely. See, for example, Va. Code Ann. \u00a7 18.2-216 (1975). Also, there is no claim that the transactions proposed in the forbidden advertisements are themselves illegal in any way. Cf. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376 (1973); United States *773 v. Hunter, 459 F. 2d 205 (CA4), cert. denied, 409 U. S. 934 (1972). Finally, the special problems of the electronic broadcast media are likewise not in this case. Cf. Capitol Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971), aff'd sub nom. Capitol Broadcasting Co. v. Acting Attorney General, 405 U. S. 1000 (1972). What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. Reserving other questions,[25] we conclude that the answer to this one is in the negative. The judgment of the District Court is affirmed. It is so ordered. MR. CHIEF JUSTICE BURGER, concurring. The Court notes that roughly 95% of all prescriptions are filled with dosage units already prepared by the manufacturer and sold to the pharmacy in that form. These are the drugs that have a market large enough to make their preparation profitable to the manufacturer; for the same reason, they are the drugs that it is profitable for the pharmacist to advertise. In dispensing *774 these prepackaged items, the pharmacist performs largely a packaging rather than a compounding function of former times. Our decision today, therefore, deals largely with the State's power to prohibit pharmacists from advertising the retail price of prepackaged drugs. As the Court notes, ante, at 773 n. 25, quite different factors would govern were we faced with a law regulating or even prohibiting advertising by the traditional learned professions of medicine or law. \"The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been `officers of the courts.' \" Goldfarb v. Virginia State Bar, 421 U. S. 773, 792 (1975). See also Cohen v. Hurley, 366 U. S. 117, 123-124 (1961). We have also recognized the State's substantial interest in regulating physicians. See, e. g., United States v. Oregon Medical Society, 343 U. S. 326, 336 (1952); Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608, 612 (1935). Attorneys and physicians are engaged primarily in providing services in which professional judgment is a large component, a matter very different from the retail sale of labeled drugs already prepared by others. MR. JUSTICE STEWART aptly observes that the \"differences between commercial price and product advertising. . . and ideological communication\" allow the State a scope in regulating the former that would be unacceptable under the First Amendment with respect to the latter. I think it important to note also that the advertisement of professional services carries with it quite different risks from the advertisement of standard products. The Court took note of this in Semler, supra, at 612, in upholding a state statute prohibiting entirely certain types of advertisement by dentists: \"The legislature was not dealing with traders in *775 commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place. The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous.\" I doubt that we know enough about evaluating the quality of medical and legal services to know which claims of superiority are \"misleading\" and which are justifiable. Nor am I sure that even advertising the price of certain professional services is not inherently misleading, since what the professional must do will vary greatly in individual cases. It is important to note that the Court wisely leaves these issues to another day. MR. JUSTICE STEWART, concurring. In Thornhill v. Alabama, 310 U. S. 88, the Court observed that \"[f]reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.\" Id., at 102. Shortly after the Thornhill decision, the Court identified a single category of communications that is constitutionally unprotected: communications \"which by their very utterance inflict *776 injury.\" Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Yet only a month after Chaplinsky, and without reference to that decision, the Court stated in Valentine v. Chrestensen, 316 U. S. 52, 54 that \"the Constitution imposes no such restraint on government as respects purely commercial advertising.\" For more than 30 years this \"casual, almost offhand\" statement in Chrestensen has operated to exclude commercial speech from the protection afforded by the First Amendment to other types of communication. Cammarano v. United States, 358 U. S. 498, 514 (Douglas, J., concurring).[1] Today the Court ends the anomalous situation created by Chrestensen and holds that a communication which does no more than propose a commercial transaction is not \"wholly outside the protection of the First Amendment.\" Ante, at 761. But since it is a cardinal principle of the First Amendment that \"government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,\"[2] the Court's decision calls into immediate question the constitutional legitimacy of every state and federal law regulating false or deceptive advertising. I write separately to explain why I think today's decision does not preclude such governmental regulation. *777 The Court has on several occasions addressed the problem posed by false statements of fact in libel cases. Those cases demonstrate that even with respect to expression at the core of the First Amendment, the Constitution does not provide absolute protection for false factual statements that cause private injury. In Gertz v. Robert Welch, Inc., 418 U. S. 323, 340, the Court concluded that \"there is no constitutional value in false statements of fact.\" As the Court had previously recognized in New York Times Co. v. Sullivan, 376 U. S. 254, however, factual errors are inevitable in free debate, and the imposition of liability for erroneous factual assertions can \"dampe[n] the vigor and limi[t] the variety of public debate\" by inducing \"self-censorship.\" Id., at 279. In order to provide ample \"breathing space\" for free expression, the Constitution places substantial limitations on the discretion of government to permit recovery for libelous communications. See Gertz v. Robert Welch, Inc., supra, at 347-349. The principles recognized in the libel decisions suggest that government may take broader action to protect the public from injury produced by false or deceptive price or product advertising than from harm caused by defamation. In contrast to the press, which must often attempt to assemble the true facts from sketchy and sometimes conflicting sources under the pressure of publication deadlines, the commercial advertiser generally knows the product or service he seeks to sell and is in a position to verify the accuracy of his factual representations before he disseminates them. The advertiser's access to the truth about his product and its price substantially eliminates any danger that governmental regulation of false or misleading price or product advertising will chill accurate and nondeceptive commercial expression. There *778 is, therefore, little need to sanction \"some falsehood in order to protect speech that matters.\" Id., at 341. The scope of constitutional protection of communicative expression is not universally inelastic. In the area of labor relations, for example, the Court has recognized that \"an employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the National Labor Relations Board.\" NLRB v. Gissel Packing Co., 395 U. S. 575, 617. See NLRB v. Virginia Electric & Power Co., 314 U. S. 469. Yet, in that context, the Court has concluded that the employer's freedom to communicate his views to his employees may be restricted by the requirement that any predictions \"be carefully phrased on the basis of objective fact.\"[3] 395 U. S., at 618. In response to the contention that the \"line between so-called permitted predictions and proscribed threats is too vague to stand up under traditional First Amendment analysis,\" the Court relied on the employer's intimate knowledge of the employer-employee relationship and his ability to \"avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees.\" *779 Id., at 620. Cf. United States v. 95 Barrels of Vinegar, 265 U. S. 438, 443 (\"It is not difficult to choose statements, designs and devices which will not deceive\"). Although speech in the labor relations setting may be distinguished from commercial advertising,[4] the Gissel Packing Co. opinion is highly significant in the present context because it underscores the constitutional importance of the speaker's specific and unique knowledge of the relevant facts and establishes that a regulatory scheme monitoring \"the impact of utterances\" is not invariably inconsistent with the First Amendment.[5] See 395 U. S., at 620. The Court's determination that commercial advertising of the kind at issue here is not \"wholly outside the protection of\" the First Amendment indicates by its very phrasing that there are important differences between commercial price and product advertising, on the one hand, and ideological communication on the other. See ante, at 771-772, n. 24. Ideological expression, be it oral, literary, pictorial, or theatrical, is integrally related to the exposition of thought\u2014thought that may shape our concepts of the whole universe of man. Although such expression may convey factual information relevant to social and individual decisionmaking, it is protected by *780 the Constitution, whether or not it contains factual representations and even if it includes inaccurate assertions of fact. Indeed, disregard of the \"truth\" may be employed to give force to the underlying idea expressed by the speaker.[6] \"Under the First Amendment there is no such thing as a false idea,\" and the only way that ideas can be suppressed is through \"the competition of other ideas,\" Gertz v. Robert Welch, Inc., 418 U. S., at 339-340. Commercial price and product advertising differs markedly from ideological expression because it is confined to the promotion of specific goods or services.[7] The First Amendment protects the advertisement because of the \"information of potential interest and value\" conveyed, Bigelow v. Virginia, 421 U. S. 809, 822, rather than because of any direct contribution to the interchange of ideas. See ante, at 762-765, 770.[8] Since the factual claims contained in commercial price or product advertisements relate to tangible goods or services, they may be tested empirically and corrected to reflect the truth without in any manner jeopardizing the free dissemination *781 of thought. Indeed, the elimination of false and deceptive claims serves to promote the one facet of commercial price and product advertising that warrants First Amendment protection\u2014its contribution to the flow of accurate and reliable information relevant to public and private decisionmaking. MR. JUSTICE REHNQUIST, dissenting. The logical consequences of the Court's decision in this case, a decision which elevates commercial intercourse between a seller hawking his wares and a buyer seeking to strike a bargain to the same plane as has been previously reserved for the free marketplace of ideas, are far reaching indeed. Under the Court's opinion the way will be open not only for dissemination of price information but for active promotion of prescription drugs, liquor, cigarettes, and other products the use of which it has previously been thought desirable to discourage. Now, however, such promotion is protected by the First Amendment so long as it is not misleading or does not promote an illegal product or enterprise. In coming to this conclusion, the Court has overruled a legislative determination that such advertising should not be allowed and has done so on behalf of a consumer group which is not directly disadvantaged by the statute in question. This effort to reach a result which the Court obviously considers desirable is a troublesome one, for two reasons. It extends standing to raise First Amendment claims beyond the previous decisions of this Court. It also extends the protection of that Amendment to purely commercial endeavors which its most vigorous champions on this Court had thought to be beyond its pale.\nI I do not find the question of the appellees' standing to urge the claim which the Court decides quite as easy *782 as the Court does. The Court finds standing on the part of the consumer appellees based upon a \"right to `receive information.' \" Ante, at 757. Yet it has been stipulated in this case that the challenged statute does not prohibit anyone from receiving this information either in person or by phone. Ante, at 752, and n. 6. The statute forbids \"only publish[ing], advertis[ing] or promot[ing]\" prescription drugs. While it may be generally true that publication of information by its source is essential to effective communication, it is surely less true, where, as here, the potential recipients of the information have, in the Court's own words, a \"keen, if not keener by far,\" interest in it than \"in the day's most urgent political debate.\" Ante, at 763. Appellees who have felt so strongly about their right to receive information as to litigate the issue in this lawsuit must also have enough residual interest in the matter to call their pharmacy and inquire. The statute, in addition, only forbids pharmacists to publish this price information. There is no prohibition against a consumer group, such as appellees, collecting and publishing comparative price information as to various pharmacies in an area. Indeed they have done as much in their briefs in this case. Yet, though appellees could both receive and publish the information in question the Court finds that they have standing to protest that pharmacists are not allowed to advertise. Thus, contrary to the assertion of the Court, appellees are not asserting their \"right to receive information\" at all but rather the right of some third party to publish. In the cases relied upon by the Court, ante, at 756-757, the plaintiffs asserted their right to receive information which would not be otherwise reasonably available to them.[*] They did not seek to assert the right of a third *783 party, not before the Court, to disseminate information. Here, the only group truly restricted by this statute, the pharmacists, have not even troubled to join in this litigation and may well feel that the expense and competition of advertising is not in their interest.\nII Thus the issue on the merits is not, as the Court phrases it, whether \"[o]ur pharmacist\" may communicate the fact that he \"will sell you the X prescription drug at the Y price.\" No pharmacist is asserting any such claim to so communicate. The issue is rather whether appellee consumers may override the legislative determination that pharmacists should not advertise even though the pharmacists themselves do not object. In deciding that they may do so, the Court necessarily adopts a rule which cannot be limited merely to dissemination of price alone, and which cannot possibly be confined to pharmacists but must likewise extend to lawyers, doctors, and all other professions. The Court speaks of the consumer's interest in the free flow of commercial information, particularly in the case of the poor, the sick, and the aged. It goes on to observe that \"society also may have a strong interest in the free flow of commercial information.\" Ante, at 764. One need not disagree with either of these statements in order to feel that they should presumptively be the concern of the Virginia Legislature, which sits to balance these and other claims in the process of making laws such as the one here under attack. The Court speaks of the *784 importance in a \"predominantly free enterprise economy\" of intelligent and well-informed decisions as to allocation of resources. Ante, at 765. While there is again much to be said for the Court's observation as a matter of desirable public policy, there is certainly nothing in the United States Constitution which requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession. E. g., Nebbia v. New York, 291 U. S. 502 (1934); Olsen v. Nebraska, 313 U. S. 236 (1941). As Mr. Justice Black, writing for the Court, observed in Ferguson v. Skrupa, 372 U. S. 726, 730 (1963): \"The doctrine . . . that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely\u2014has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies who are elected to pass laws.\" Similarly in Williamson v. Lee Optical Co., 348 U. S. 483 (1955), the Court, in dealing with a state prohibition against the advertisement of eyeglass frames, held: \"We see no constitutional reason why a State may not treat all who deal with the human eye as members of a profession who should use no merchandising methods for obtaining customers.\" Id., at 490. The Court addresses itself to the valid justifications which may be found for the Virginia statute, and apparently discounts them because it feels they embody a \"highly paternalistic approach.\" Ante, at 770. It concludes that the First Amendment requires that channels of advertising communication with respect to prescription drugs must be opened, and that Virginia may not *785 keep \"the public in ignorance of the entirely lawful terms that competing pharmacists are offering.\" Ibid. The Court concedes that legislatures may prohibit false and misleading advertisements, and may likewise prohibit advertisements seeking to induce transactions which are themselves illegal. In a final footnote the opinion tosses a bone to the traditionalists in the legal and medical professions by suggesting that because they sell services rather than drugs the holding of this case is not automatically applicable to advertising in those professions. But if the sole limitation on permissible state proscription of advertising is that it may not be false or misleading, surely the difference between pharmacists' advertising and lawyers' and doctors' advertising can be only one of degree and not of kind. I cannot distinguish between the public's right to know the price of drugs and its right to know the price of title searches or physical examinations or other professional services for which standardized fees are charged. Nor is it apparent how the pharmacists in this case are less engaged in a regulatable profession than were the opticians in Williamson, supra. Nor will the impact of the Court's decision on existing commercial and industrial practice be limited to allowing advertising by the professions. The Court comments that in labor disputes \"it has long been settled that both the employee and the employer are protected by the First Amendment when they express themselves on the merits of the dispute in order to influence its outcome.\" Ante, at 762. But the first case cited by the Court in support of this proposition, NLRB v. Gissel Packing Co., 395 U. S. 575, 617-618 (1969), falls a good deal short of supporting this general statement. The Court there said that \"an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the *786 communications do not contain a `threat of reprisal or force or promise of benefit.'\" Id., at 618. This carefully guarded language is scarcely a ringing endorsement of even the second-class First Amendment rights which the Court has today created in commercial speech. It is hard to see why an employer's right to publicize a promise of benefit may be prohibited by federal law, so long as the promise is neither false nor deceptive, if pharmacists' price advertising may not be prohibited by the Virginia Legislature. Yet such a result would be wholly inconsistent with established labor law. Both the Courts of Appeals and the National Labor Relations Board have not hesitated to set aside representation elections in which the employer made statements which were undoubtedly truthful but which were found to be implicitly coercive. For instance, in NLRB v. Realist, Inc., 328 F. 2d 840 (CA7 1964), an election was set aside when the employer, in a concededly non-threatening manner, raised the specter of plant closings which would result from unionism. In Oak Mfg. Co., 141 N. L. R. B. 1323, 1328-1330 (1963), the Board set aside an election where the employer stated \"categorically\" that the union \"cannot and will not obtain any wage increase for you,\" and with respect to seniority said that it could \"assure\" the employees that the union's program \"will be worse\" than the present system. In Freeman Mfg. Co., 148 N. L. R. B. 577 (1964), the employer sent letters to employees in which he urged that unionization might cause customers to cease buying the company's product because of delays and higher prices. The Board found this to be ground for invalidating the election. Presumably all of these holdings will require re-evaluation in the light of today's decision with a view toward allowing the employer's speech because it is now protected by the First Amendment, as expanded by this decision. *787 There are undoubted difficulties with an effort to draw a bright line between \"commercial speech\" on the one hand and \"protected speech\" on the other, and the Court does better to face up to these difficulties than to attempt to hide them under labels. In this case, however, the Court has unfortunately substituted for the wavering line previously thought to exist between commercial speech and protected speech a no more satisfactory line of its own\u2014that between \"truthful\" commercial speech, on the one hand, and that which is \"false and misleading\" on the other. The difficulty with this line is not that it wavers, but on the contrary that it is simply too Procrustean to take into account the congeries of factors which I believe could, quite consistently with the First and Fourteenth Amendments, properly influence a legislative decision with respect to commercial advertising. The Court insists that the rule it lays down is consistent even with the view that the First Amendment is \"primarily an instrument to enlighten public decisionmaking in a democracy.\" Ante, at 765. I had understood this view to relate to public decisionmaking as to political, social, and other public issues, rather than the decision of a particular individual as to whether to purchase one or another kind of shampoo. It is undoubtedly arguable that many people in the country regard the choice of shampoo as just as important as who may be elected to local, state, or national political office, but that does not automatically bring information about competing shampoos within the protection of the First Amendment. It is one thing to say that the line between strictly ideological and political commentaries and other kinds of commentary is difficult to draw, and that the mere fact that the former may have in it an element of commercialism does not strip it of First Amendment protection. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). But it is another thing to say that because that *788 line is difficult to draw, we will stand at the other end of the spectrum and reject out of hand the observation of so dedicated a champion of the First Amendment as Mr. Justice Black that the protections of that Amendment do not apply to a \"`merchant' who goes from door to door `selling pots.'\" Breard v. City of Alexandria, 341 U. S. 622, 650 (1951) (dissenting). In the case of \"our\" hypothetical pharmacist, he may now presumably advertise not only the prices of prescription drugs, but may attempt to energetically promote their sale so long as he does so truthfully. Quite consistently with Virginia law requiring prescription drugs to be available only through a physician, \"our\" pharmacist might run any of the following representative advertisements in a local newspaper: \"Pain getting you down? Insist that your physician prescribe Demerol. You pay a little more than for aspirin, but you get a lot more relief.\" \"Can't shake the flu? Get a prescription for Tetracycline from your doctor today.\" \"Don't spend another sleepless night. Ask your doctor to prescribe Seconal without delay.\" Unless the State can show that these advertisements are either actually untruthful or misleading, it presumably is not free to restrict in any way commercial efforts on the part of those who profit from the sale of prescription drugs to put them in the widest possible circulation. But such a line simply makes no allowance whatever for what appears to have been a considered legislative judgment in most States that while prescription drugs are a necessary and vital part of medical care and treatment, there are sufficient dangers attending their widespread use that they simply may not be promoted in the same manner as hair creams, deodorants, and toothpaste. The very real dangers that general advertising for such drugs *789 might create in terms of encouraging, even though not sanctioning, illicit use of them by individuals for whom they have not been prescribed, or by generating patient pressure upon physicians to prescribe them, are simply not dealt with in the Court's opinion. If prescription drugs may be advertised, they may be advertised on television during family viewing time. Nothing we know about the acquisitive instincts of those who inhabit every business and profession to a greater or lesser extent gives any reason to think that such persons will not do everything they can to generate demand for these products in much the same manner and to much the same degree as demand for other commodities has been generated. Both Congress and state legislatures have by law sharply limited the permissible dissemination of information about some commodities because of the potential harm resulting from those commodities, even though they were not thought to be sufficiently demonstrably harmful to warrant outright prohibition of their sale. Current prohibitions on television advertising of liquor and cigarettes are prominent in this category, but apparently under the Court's holding so long as the advertisements are not deceptive they may no longer be prohibited. This case presents a fairly typical First Amendment problem\u2014that of balancing interests in individual free speech against public welfare determinations embodied in a legislative enactment. As the Court noted in American Communications Assn. v. Douds, 339 U. S. 382, 399 (1950): \"[L]egitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from the present excesses of direct, active conduct, are not presumptively bad because they *790 interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights.\" Here the rights of the appellees seem to me to be marginal at best. There is no ideological content to the information which they seek and it is freely available to them\u2014they may even publish it if they so desire. The only persons directly affected by this statute are not parties to this lawsuit. On the other hand, the societal interest against the promotion of drug use for every ill, real or imaginary, seems to me extremely strong. I do not believe that the First Amendment mandates the Court's \"open door policy\" toward such commercial advertising. NOTES [*] Briefs of amici curiae urging affirmance were filed by Alfred Miller and Stephen L. Solomon for the American Association of Retired Persons et al.; by Gilbert H. Weil, Philip B. Kurland, and Alan L. Unikel for the Association of National Advertisers, Inc.; and by Harold Rosenwald for Osco Drug, Inc. [1] The First Amendment is applicable to the States through the Due Process Clause of the Fourteenth Amendment. See, e. g., Bigelow v. Virginia, 421 U. S. 809, 811 (1975); Schneider v. State, 308 U. S. 147, 160 (1939). [2] Section 54-524.35 provides in full: \"Any pharmacist shall be considered guilty of unprofessional conduct who (1) is found guilty of any crime involving grave moral turpitude, or is guilty of fraud or deceit in obtaining a certificate of registration; or (2) issues, publishes, broadcasts by radio, or otherwise, or distributes or uses in any way whatsoever advertising matter in which statements are made about his professional service which have a tendency to deceive or defraud the public, contrary to the public health and welfare; or (3) publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms for professional services or for drugs containing narcotics or for any drugs which may be dispensed only by prescription.\" [3] The parties, also, have stipulated that pharmacy \"is a profession.\" Stipulation of Facts \u00b6 11, App. 11. [4] Id., \u00b6 8, App. 11. See generally id., \u00b6\u00b6 6-16, App. 10-12. [5] Exception is made for \"legally qualified\" practitioners of medicine, dentistry, osteopathy, chiropody, and veterinary medicine. \u00a7 54-524.53. [6] Stipulation of Facts \u00b6 25, App. 15. [7] Id., \u00b6 18, App. 13. [8] Theretofore an administrative regulation to the same effect had been outstanding. The Board, however, in 1967 was advised by the State Attorney General's office that the regulation was unauthorized. The challenged phrase was added to the statute the following year. See Patterson Drug Co. v. Kingery, 305 F. Supp. 821, 823 n. 1 (WD Va. 1969). [9] Stipulation of Facts \u00b6 3, App. 9. [10] The organizations are the Virginia Citizens Consumer Council, Inc., and the Virginia State AFL-CIO. Each has a substantial membership (approximately 150,000 and 69,000, respectively) many of whom are users of prescription drugs. Id., \u00b6\u00b6 1 and 2, App. 9. The American Association of Retired Persons and the National Retired Teachers Association, also claiming many members who \"depend substantially on prescription drugs for their well-being,\" Brief 2, are among those who have filed briefs amici curiae in support of the appellees. [11] Stipulation of Facts \u00b6\u00b6 22 (b) and (c), App. 14. The phenomenon of widely varying drug prices is apparently national in scope. The American Medical Association conducted a survey in Chicago that showed price differentials in that city of up to 1200% for the same amounts of a specific drug. A study undertaken by the Consumers Union in New York found that prices for the same amount of one drug ranged from 79 \u00a2 to $7.45, and for another from $1.25 to $11.50. Id., \u00b6\u00b6 22 (d) and (e), App. 14. Amici American Association of Retired Persons and National Retired Teachers Association state that in 1974 they participated in a survey of three prescription drug prices at 28 pharmacies in Washington, D. C., and found pharmacy-to-pharmacy variances in the price of identical drugs as great as 245%. Brief as Amici Curiae 10. The prevalence of such discrepancies \"throughout the United States\" is documented in a recent report. Staff Report to the Federal Trade Commission, Prescription Drug Price Disclosures 119 (1975). The same report indicates that 34 States impose significant restrictions on dissemination of drug price information and, thus, make the problem a national one. Id., at 34. [12] The Florida and Pennsylvania decisions appear to rest on state constitutional grounds. The Maryland decision was based on the Due Process Clause of the Fourteenth Amendment as well as on provisions of the State Constitution.\nAccord: Terry v. California State Board of Pharmacy, 395 F. Supp. 94 (ND Cal. 1975), appeal docketed, No. 75-336. Contra: Urowsky v. Board of Regents, 38 N. Y. 2d 364, 342 N. E. 2d 583 (1975); Supermarkets General Corp. v. Sills, 93 N. J. Super. 326, 225 A. 2d 728 (1966). See Note: Commercial Speech\u2014An End in Sight to Chrestensen? 23 De Paul L. Rev. 1258 (1974); Comment, 37 Brooklyn L. Rev. 617 (1971); Comment, 24 Wash. and Lee L. Rev. 299 (1967). [13] In Head v. New Mexico Board, the First Amendment issue was raised. This Court refused to consider it, however, because it had not been presented to the state courts, nor reserved in the notice of appeal here. 374 U. S., at 432 n. 12. The Court's action to this effect was noted in Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376, 387 n. 10 (1973). The appellants at the oral argument recognized that Head was a due process case. Tr. of Oral Arg. 10. [14] \"In the absence of Section 54-524.35 (3), some pharmacies in Virginia would advertise, publish and promote price information regarding prescription drugs.\" Stipulation of Facts \u00b6 26, App. 15. [15] The dissent contends that there is no such right to receive the information that another seeks to disseminate, at least not when the person objecting could obtain the information in another way, and could himself disseminate it. Our prior decisions, cited above, are said to have been limited to situations in which the information sought to be received \"would not be otherwise reasonably available,\" see post, at 782; emphasis is also placed on the appellees' great need for the information, which need, assertedly, should cause them to take advantage of the alternative of digging it up themselves. We are aware of no general principle that freedom of speech may be abridged when the speaker's listeners could come by his message by some other means, such as seeking him out and asking him what it is. Nor have we recognized any such limitation on the independent right of the listener to receive the information sought to be communicated. Certainly, the recipients of the political publications in Lamont could have gone abroad and thereafter disseminated them themselves. Those in Kleindienst who organized the lecture tour by a foreign Marxist could have done the same. And the addressees of the inmate correspondence in Procunier could have visited the prison themselves. As for the recipients' great need for the information sought to be disseminated, if it distinguishes our prior cases at all, it makes the appellees' First Amendment claim a stronger rather than a weaker one. [16] See Bigelow v. Virginia, 421 U. S., at 820 n. 6, citing Mr. Justice Douglas' observation in Cammarano v. United States, 358 U. S. 498, 514 (1959) (concurring opinion), that the Chrestensen ruling \"was casual, almost offhand. And it has not survived reflection\"; the similar observation of four Justices in dissent in Lehman v. City of Shaker Heights, 418 U. S. 298, 314 n. 6 (1974); and expressions of three Justices in separate dissents in Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S., at 393, 398, and 401. See also Mr. Justice Douglas' comment, dissenting from the denial of certiorari in Dun & Bradstreet, Inc. v. Grove, 404 U. S. 898, 904-906 (1971). [17] The speech of labor disputants, of course, is subject to a number of restrictions. The Court stated in NLRB v. Gissel Packing Co., 395 U. S., at 618, for example, that an employer's threats of retaliation for the labor actions of his employees are \"without the protection of the First Amendment.\" The constitutionality of restrictions upon speech in the special context of labor disputes is not before us here. We express no views on that complex subject, and advert to cases in the labor field only to note that in some circumstances speech of an entirely private and economic character enjoys the protection of the First Amendment. [18] The point hardly needs citation, but a few figures are illustrative. It has been estimated, for example, that in 1973 and 1974 per capita drug expenditures of persons age 65 and over were $97.27 and $103.17, respectively, more than twice the figures of $41.18 and $45.14 for all age groups. Cooper & Piro, Age Differences in Medical Care Spending, Fiscal Year 1973, 37 Social Security Bull., No. 5, p. 6 (1974); Mueller & Gibson, Age Differences in Health Care Spending, Fiscal Year 1974, 38 Social Security Bull., No. 6, p. 5 (1975). These figures, of course, reflect the higher rate of illness among the aged. In 1971, 16.9% of all Americans 65 years and over were unable to carry on major activities because of some chronic condition, the figure for all ages being only 2.9%. Statistical Policy Division, Office of Management and Budget, Social Indicators 1973, p. 36. These figures eloquently suggest the diminished capacity of the aged for the kind of active comparison shopping that a ban on advertising makes necessary or desirable. Diminished resources are also the general rule for those 65 and over; their income averages about half that for all age groups. Id., at 176.\nThe parties have stipulated that a \"significant portion of income of elderly persons is spent on medicine.\" Stipulation of Facts \u00b6 27, App. 15. [19] For the views of a leading exponent of this position, see A. Meiklejohn, Free Speech And Its Relation to Self-Government (1948). This Court likewise has emphasized the role of the First Amendment in guaranteeing our capacity for democratic self-government. See New York Times Co. v. Sullivan, 376 U. S. 254, 269-270 (1964), and cases cited therein. [20] Pharmaceuticals themselves provide a not insignificant illustration. The parties have stipulated that expenditures for prescription drugs in the United States in 1970 were estimated at $9.14 billion. Stipulation of Facts \u00b6 17, App. 12. It has been said that the figure for drugs and drug sundries in 1974 was $9.695 billion, with that amount estimated to be increasing about $700 million per year. Worthington, National Health Expenditures 1929-1974, 38 Social Security Bull., No. 2, p. 9 (1975). The task of predicting the effect that a free flow of drug price information would have on the production and consumption of drugs obviously is a hazardous and speculative one. It was recently undertaken, however, by the staff of the Federal Trade Commission in the course of its report, see n. 11, supra, on the merits of a possible Commission rule that would outlaw drug price advertising restrictions. The staff concluded that consumer savings would be \"of a very substantial magnitude, amounting to many millions of dollars per year.\" Staff Report, supra, n. 11, at 181. [21] An argument not advanced by the Board, either in its brief or in the testimony proffered prior to summary judgment, but which on occasion has been made to other courts, see, e. g., Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A. 2d 487 (1971), is that the advertisement of low drug prices will result in overconsumption and in abuse of the advertised drugs. The argument prudently has been omitted. By definition, the drugs at issue here may be sold only on a physician's prescription. We do not assume, as apparently the dissent does, that simply because low prices will be freely advertised, physicians will overprescribe, or that pharmacists will ignore the prescription requirement. [22] Monitoring, even if pursued, is not fully effective. It is complicated by the mobility of the patient; by his patronizing more than one pharmacist; by his being treated by more than one prescriber; by the availability of over-the-counter drugs; and by the antagonism of certain foods and drinks. Stipulation of Facts \u00b6\u00b6 30-47, App. 16-19. Neither the Code of Ethics of the American Pharmaceutical Association nor that of the Virginia Pharmaceutical Association requires a pharmacist to maintain family prescription records. Id., \u00b6 42, App. 18. The appellant Board has never promulgated a regulation requiring such records. Id., \u00b6 43, App. 18. [23] Descriptions of the pharmacist's expertise, its importance to the consumer, and its alleged jeopardization by price advertising are set forth at length in the numerous summaries of testimony of proposed witnesses for the Board, and objections to testimony of proposed witnesses for the plaintiffs, that the Board filed with the District Court prior to summary judgment, the substance of which appellees did not contest. App. 4, 27-48, 52-53; Brief for Appellants 4-5, and n. 2. [24] In concluding that commercial speech enjoys First Amendment protection, we have not held that it is wholly undifferentiable from other forms. There are commonsense differences between speech that does \"no more than propose a commercial transaction,\" Pittsburgh Press Co., v. Human Relations Comm'n, 413 U. S., at 385, and other varieties. Even if the differences do not justify the conclusion that commercial speech is valueless, and thus subject to complete suppression by the State, they nonetheless suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired. The truth of commercial speech, for example, may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else. Also, commercial speech may be more durable than other kinds. Since advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely.\nAttributes such as these, the greater objectivity and hardiness of commercial speech, may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker. Compare New York Times Co. v. Sullivan, 376 U. S. 254 (1964), with Dun & Bradstreet, Inc. v. Grove, 404 U. S. 898 (1971). They may also make it appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive. Compare Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), with Banzhaf v. FCC, 132 U. S. App. D. C. 14, 405 F. 2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U. S. 842 (1969). Cf. United States v. 95 Barrels of Vinegar, 265 U. S. 438, 443 (1924) (\"It is not difficult to choose statements, designs and devices which will not deceive\"). They may also make inapplicable the prohibition against prior restraints. Compare New York Times Co. v. United States, 403 U. S. 713 (1971), with Donaldson v. Read Magazine, 333 U. S. 178, 189-191 (1948); FTC v. Standard Education Society, 302 U. S. 112 (1937); E. F. Drew & Co. v. FTC, 235 F. 2d 735, 739-740 (CA2 1956), cert. denied, 352 U. S. 969 (1957). [25] We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising. [1] In recent years the soundness of the sweeping language of the Chrestensen opinion has been repeatedly questioned. See Bigelow v. Virginia, 421 U. S. 809, 819-821; Lehman v. City of Shaker Heights, 418 U. S. 298, 314-315, and n. 6 (BRENNAN, J., dissenting); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376, 398 (Douglas, J., dissenting); id., at 401, and n. 6 (STEWART, J., dissenting); Dun & Bradstreet, Inc. v. Grove, 404 U. S. 898, 904-906 (Douglas, J., dissenting from denial of certiorari). [2] Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95. See, e. g., Hudgens v. NLRB, 424 U. S. 507, 520; Erznoznik v. City of Jacksonville, 422 U. S. 205, 209; Pell v. Procunier, 417 U. S. 817, 828; Grayned v. City of Rockford, 408 U. S. 104, 115. [3] Speech by an employer or a labor union organizer that contains material misrepresentations of fact or appeals to racial prejudice may form the basis of an unfair labor practice or warrant the invalidation of a certification election. See, e. g., Sewell Mfg. Co., 138 N. L. R. B. 66; United States Gypsum Co., 130 N. L. R. B. 901; Gummed Products Co., 112 N. L. R. B. 1092. Such restrictions would clearly violate First Amendment guarantees if applied to political expression concerning the election of candidates to public office. See Vanasco v. Schwartz, 401 F. Supp. 87 (EDNY) (three-judge court), summarily aff'd sub nom. Schwartz v. Postel, 423 U. S. 1041. Other restrictions designed to promote antiseptic conditions in the labor relations context, such as the prohibition of certain campaigning during the 24-hour period preceding the election, would be constitutionally intolerable if applied in the political arena. Compare Peerless Plywood Co., 107 N. L. R. B. 427, with Mills v. Alabama, 384 U. S. 214. [4] In the labor relations area, governmental regulation of expression by employers has been justified in part by the competing First Amendment associational interests of employees and by the economic dependence of employees on their employers. See NLRB v. Gissel Packing Co., 395 U. S., at 617-618; NLRB v. Virginia Electric & Power Co., 314 U. S. 469, 477. [5] The Court in Gissel Packing Co. emphasized the NLRB's expertise in determining whether statements by employers would tend to mislead or coerce employees. 395 U. S., at 620. The NLRB's armamentarium for responding to material misrepresentations and deceptive tactics includes the issuance of cease-and-desist orders and the securing of restraining orders. See 29 U. S. C. \u00a7\u00a7 160 (c), (j). [6] As the Court observed in Cantwell v. Connecticut, 310 U. S. 296, 310: \"To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.\" [7] See Developments in the Law\u2014Deceptive Advertising, 80 Harv. L. Rev. 1005, 1030-1031 (1967). [8] The information about price and product conveyed by commercial advertisements may, of course, stimulate thought and debate about political questions. The drug price information at issue in the present case might well have an impact, for instance, on a person's views concerning price control issues, government subsidy proposals, or special health care, consumer protection, or tax legislation. [*] The Court contends, ante, at 757-758, n. 15, that this case is indistinguishable from Procunier, Kleindienst, and Lamont, in that in all of those cases it was possible for the parties to obtain the information on their own. In Procunier this would have entailed traveling to a state prison; in Kleindienst and Lamont, traveling abroad. Obviously such measures would limit access to information in a way that the requirement of a phone call or a trip to the corner drugstore would not.","meta":{"dup_signals":{"dup_doc_count":1096,"dup_dump_count":66,"dup_details":{"2023-50":1,"2023-23":1,"2023-14":3,"2023-06":1,"2022-27":1,"2022-21":1,"2021-49":3,"2021-31":1,"2021-17":1,"2021-04":2,"2020-50":1,"2020-40":3,"2020-34":1,"2020-29":1,"2020-16":2,"2020-05":3,"2019-51":1,"2019-47":1,"2019-43":3,"2019-39":1,"2019-30":3,"2019-22":1,"2019-18":1,"2019-13":3,"2019-04":1,"2018-51":2,"2018-43":3,"2018-34":1,"2018-30":1,"2018-22":2,"2018-17":1,"2018-09":2,"2018-05":3,"2017-51":3,"2017-47":3,"2017-43":3,"2017-39":7,"2017-34":2,"2017-30":3,"2017-26":1,"2017-22":9,"2017-17":3,"2017-09":47,"2017-04":4,"2016-50":3,"2016-44":16,"2016-40":15,"2016-36":16,"2016-30":12,"2016-22":1,"2016-18":1,"2016-07":50,"2015-48":50,"2015-40":39,"2015-35":48,"2015-32":49,"2015-27":46,"2015-22":19,"2015-14":61,"2014-52":54,"2014-49":70,"2014-42":102,"2014-41":76,"2014-35":72,"2014-23":70,"2014-15":85}}},"subset":"freelaw"}
{"text":"458 U.S. 747 (1982) NEW YORK v. FERBER No. 81-55. Supreme Court of the United States. Argued April 27, 1982. Decided July 2, 1982. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK *748 Robert M. Pitler argued the cause for petitioner. With him on the briefs was Mark Dwyer. Herald Price Fahringer argued the cause for respondent. With him on the brief was Paul J. Cambria, Jr.[*] *749 JUSTICE WHITE delivered the opinion of the Court. At issue in this case is the constitutionality of a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.\nI In recent years, the exploitive use of children in the production of pornography has become a serious national problem.[1] The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene.[2] *750 New York is one of the 20. In 1977, the New York Legislature enacted Article 263 of its Penal Law. N. Y. Penal Law, Art. 263 (McKinney 1980). Section 263.05 criminalizes as a class C felony the use of a child in a sexual performance: \"A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, *751 he consents to the participation by such child in a sexual performance.\" A \"[s]exual performance\" is defined as \"any performance or part thereof which includes sexual conduct by a child less than sixteen years of age.\" \u00a7 263.00(1). \"Sexual conduct\" is in turn defined in \u00a7 263.00(3): \"`Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.\" A performance is defined as \"any play, motion picture, photograph or dance\" or \"any other visual representation exhibited before an audience.\" \u00a7 263.00(4). At issue in this case is \u00a7 263.15, defining a class D felony:[3] \"A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age.\" To \"promote\" is also defined: \"`Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.\" \u00a7 263.00(5). A companion provision bans only the knowing dissemination of obscene material. \u00a7 263.10. This case arose when Paul Ferber, the proprietor of a Manhattan *752 bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted on two counts of violating \u00a7 263.10 and two counts of violating \u00a7 263.15, the two New York laws controlling dissemination of child pornography.[4] After a jury trial, Ferber was acquitted of the two counts of promoting an obscene sexual performance, but found guilty of the two counts under \u00a7 263.15, which did not require proof that the films were obscene. Ferber's convictions were affirmed without opinion by the Appellate Division of the New York State Supreme Court. 74 A.D. 2d 558, 424 N. Y. S. 2d 967 (1980). The New York Court of Appeals reversed, holding that \u00a7263.15 violated the First Amendment. 52 N.Y. 2d 674, 422 N.E.2d 523 (1981). The court began by noting that in light of \u00a7 263.10's explicit inclusion of an obscenity standard, \u00a7 263.15 could not be construed to include such a standard. Therefore, \"the statute would . . . prohibit the promotion of materials which are traditionally entitled to constitutional protection from government interference under the First Amendment.\" 52 N.Y. 2d, at 678, 422 N.E.2d, at 525. Although the court recognized the State's \"legitimate interest in protecting the welfare of minors\" and noted that this \"interest may transcend First Amendment concerns,\" id., at 679, 422 N.E.2d, at 525-526, it nevertheless found two fatal defects in the New York statute. Section 263.15 was underinclusive because it discriminated against visual portrayals of children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous activity. It was also overbroad because it prohibited the distribution of materials produced outside the State, as well as materials, such as medical books and educational sources, which *753 \"deal with adolescent sex in a realistic but nonobscene manner.\" 52 N.Y. 2d, at 681, 422 N.E.2d, at 526. Two judges dissented. We granted the State's petition for certiorari, 454 U.S. 1052 (1981), presenting the single question: \"To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New York State Legislature, consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene?\" II The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in \u00a7 263.10, which follows the guidelines enunciated in Miller v. California, 413 U.S. 15 (1973),[5] constitutes the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography. It was on the premise that \"nonobscene adolescent sex\" could not be singled out for special treatment that the court found \u00a7 263.15 \"strikingly underinclusive.\" Moreover, the assumption that the constitutionally permissible regulation of pornography could not be more extensive with respect to the distribution of material depicting children may also have led the court to conclude that a narrowing construction of \u00a7 263.15 was unavailable. The Court of Appeals' assumption was not unreasonable in light of our decisions. This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children.\n*754 A In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Court laid the foundation for the excision of obscenity from the realm of constitutionally protected expression: \"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.\" Id., at 571-572 (footnotes omitted). Embracing this judgment, the Court squarely held in Roth v. United States, 354 U.S. 476 (1957), that \"obscenity is not within the area of constitutionally protected speech or press.\" Id., at 485. The Court recognized that \"rejection of obscenity as utterly without redeeming social importance\" was implicit in the history of the First Amendment: The original States provided for the prosecution of libel, blasphemy, and profanity, and the \"universal judgment that obscenity should be restrained [is] reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by Congress from 1842 to 1956.\" Id., at 484-485 (footnotes omitted). Roth was followed by 15 years during which this Court struggled with \"the intractable obscenity problem.\" Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (opinion of Harlan, J.). See, e. g., Redrup v. New York, 386 U.S. 767 (1967). Despite considerable vacillation over the proper definition of obscenity, a majority of the Members of the Court remained firm in the position that \"the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities *755 of unwilling recipients or of exposure to juveniles.\" Miller v. California, supra, at 18-19 (footnote omitted); Stanley v. Georgia, 394 U.S. 557, 567 (1969); Ginsberg v. New York, 390 U.S. 629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, supra, at 769; Jacobellis v. Ohio, 378 U.S. 184, 195 (1964). Throughout this period, we recognized \"the inherent dangers of undertaking to regulate any form of expression.\" Miller v. California, supra, at 23. Consequently, our difficulty was not only to assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited, but also to devise substantive limits on what fell within the permissible scope of regnlation. In Miller v. California, supra, a majority of the Court agreed that a \"state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.\" Id., at 24. Over the past decade, we have adhered to the guidelines expressed in Miller,[6] which subsequently has been followed in the regulatory schemes of most States.[7] *756 B The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the \"sensibilities of unwilling recipients\" from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children. First. It is evident beyond the need for elaboration that a State's interest in \"safeguarding the physical and psychological *757 well-being of a minor\" is \"compelling.\" Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). \"A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.\" Prince v. Massachusetts, 321 U.S. 158, 168 (1944). Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute's effect on a First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York law protecting children from exposure to nonobscene literature. Most recently, we held that the Government's interest in the \"well-being of its youth\" justified special treatment of indecent broadcasting received by adults as well as children. FCC v. Pacifica Foundation, 438 U.S. 726 (1978). The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern: \"[T]here has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances.\" 1977 N. Y. Laws, ch. 910, \u00a7 1.[8] *758 We shall not second-guess this legislative judgment. Respondent has not intimated that we do so. Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating \"child pornography.\" The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.[9] That judgment, we think, easily passes muster under the First Amendment. *759 Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.[10] Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if *760 not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.[11] Cf. United States v. Darby, 312 U.S. 100 (1941) (upholding federal restrictions on sale of goods manufactured in violation of Fair Labor Standards Act). Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow *761 that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be \"patently offensive\" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. \"It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value.\" Memorandum of Assemblyman Lasher in Support of \u00a7 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.[12] Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation.[13] \"It rarely has been suggested that *762 the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.\" Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).[14] We note that were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed.[15] Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance *763 or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.[16] Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more \"realistic\" by utilizing or photographing children. Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. \"The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech.\" Young v. American Mini Theatres, Inc., 427 U.S. 50, 66 (1976) (opinion of STEVENS, J., joined by BURGER, C. J., and WHITE and REHNQUIST, JJ.). See also FCC v. Pacifica Foundation, 438 U.S. 726, 742-748 (1978) (opinion of STEVENS, J., joined by BURGER, C. J., and REHNQUIST, J.). \"[I]t is the content of [an] utterance that determines whether it is a protected epithet or an unprotected `fighting comment.'\" Young v. American Mini Theatres, Inc., supra, at 66. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Leaving aside the special considerations when public officials are the target, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a libelous publication is not protected by the Constitution. Beauharnais v. Illinois, 343 U.S. 250 (1952). Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs *764 the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by \u00a7 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.\nC There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age.[17] The category of \"sexual conduct\" proscribed must also be suitably limited and described. The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution *765 of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Smith v. California, 361 U.S. 147 (1959); Hamling v. United States, 418 U.S. 87 (1974).\nD Section 263.15's prohibition incorporates a definition of sexual conduct that comports with the above-stated principles. The forbidden acts to be depicted are listed with sufficient precision and represent the kind of conduct that, if it were the theme of a work, could render it legally obscene: \"actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.\" \u00a7 263.00(3). The term \"lewd exhibition of the genitals\" is not unknown in this area and, indeed, was given in Miller as an example of a permissible regulation. 413 U.S., at 25. A performance is defined only to include live or visual depictions: \"any play, motion picture, photograph or dance . . . [or] other visual representation exhibited before an audience.\" \u00a7 263.00(4). Section 263.15 expressly includes a scienter requirement. We hold that \u00a7 263.15 sufficiently describes a category of material the production and distribution of which is not entitled to First Amendment protection. It is therefore clear that there is nothing unconstitutionally \"underinclusive\" about a statute that singles out this category of material for proscription.[18] It also follows that the State is not barred by *766 the First Amendment from prohibiting the distribution of unprotected materials produced outside the State.[19] III It remains to address the claim that the New York statute is unconstitutionally overbroad because it would forbid the distribution of material with serious literary, scientific, or educational value or material which does not threaten the harms sought to be combated by the State. Respondent prevailed on that ground below, and it is to that issue that we now turn. The New York Court of Appeals recognized that overbreadth scrutiny has been limited with respect to conductrelated regulation, Broadrick v. Oklahoma, 413 U.S. 601 (1973), but it did not apply the test enunciated in Broadrick because the challenged statute, in its view, was directed at \"pure speech.\" The court went on to find that \u00a7 263.15 was fatally overbroad: \"[T]he statute would prohibit the showing of any play or movie in which a child portrays a defined sexual act, real or simulated, in a nonobscene manner. It would also prohibit the sale, showing, or distributing of medical or educational materials containing photographs of such acts. *767 Indeed, by its terms, the statute would prohibit those who oppose such portrayals from providing illustrations of what they oppose.\" 52 N.Y. 2d, at 678, 422 N.E.2d, at 525. While the construction that a state court gives a state statute is not a matter subject to our review, Wainwright v. Stone, 414 U.S. 21, 22-23 (1973); Gooding v. Wilson, 405 U.S. 518, 520 (1972), this Court is the final arbiter of whether the Federal Constitution necessitated the invalidation of a state law. It is only through this process of review that we may correct erroneous applications of the Constitution that err on the side of an overly broad reading of our doctrines and precedents, as well as state-court decisions giving the Constitution too little shrift. A state court is not free to avoid a proper facial attack on federal constitutional grounds. Bigelow v. Virginia, 421 U.S. 809, 817 (1975). By the same token, it should not be compelled to entertain an overbreadth attack when not required to do so by the Constitution.\nA The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. Broadrick v. Oklahoma, supra, at 610; United States v. Raines, 362 U.S. 17, 21 (1960); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513 (1937); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220 (1912). In Broadrick, we recognized that this rule reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, McGowan v. Maryland, 366 U.S. 420, 429 (1961), and prudential limitations on constitutional adjudication.[20] In United States v. Raines, supra, at 21, we *768 noted the \"incontrovertible proposition\" that it \"`would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,'\" (quoting Barrows v. Jackson, 346 U.S. 249, 256 (1953)). By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule,[21] we face \"flesh-and-blood\"[22] legal problems with data \"relevant and adequate to an informed judgment.\"[23] This practice also fulfills a valuable institutional purpose: it allows state courts the opportunity to construe a law to avoid constitutional infirmities. What has come to be known as the First Amendment overbreadth doctrine is one of the few exceptions to this principle and must be justified by \"weighty countervailing policies.\" United States v. Raines, supra, at 22-23. The doctrine is predicated on the sensitive nature of protected expression: \"persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.\" Village of Schaumburg v. *769 Citizens for a Better Environment, 444 U.S. 620, 634 (1980); Gooding v. Wilson, supra, at 521. It is for this reason that we have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected and could be proscribed by a law drawn with the requisite specificity. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965); Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940); United States v. Raines, supra, at 21-22; Gooding v. Wilson, supra, at 521. The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is \"strong medicine\" and have employed it with hesitation, and then \"only as a last resort.\" Broadrick, 413 U. S., at 613. We have, in consequence, insisted that the overbreadth involved be \"substantial\" before the statute involved will be invalidated on its face.[24] *770 In Broadrick, we explained the basis for this requirement: \"[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from `pure speech' toward conduct and that conduct\u2014even if expressive\u2014falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect\u2014at best a prediction\u2014cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-175 (1969).\" Id., at 615. We accordingly held that \"particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.\" Ibid.[25] *771 Broadrick examined a regulation involving restrictions on political campaign activity, an area not considered \"pure speech,\" and thus it was unnecessary to consider the proper overbreadth test when a law arguably reaches traditional forms of expression such as books and films. As we intimated in Broadrick, the requirement of substantial overbreadth extended \"at the very least\" to cases involving conduct plus speech. This case, which poses the question squarely, convinces us that the rationale of Broadrick is sound and should be applied in the present context involving the harmful employment of children to make sexually explicit materials for distribution. The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression.[26]*772 Indeed, JUSTICE BRENNAN observed in his dissenting opinion in Broadrick: \"We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine.\" Id., at 630. The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation.[27] This observation appears equally applicable to the publication of books and films as it is to activities, such as picketing or participation in election campaigns, which have previously been categorized as involving conduct plus speech. We see no appreciable difference between the position of a publisher or bookseller in doubt as to the reach of New York's child pornography law and the situation faced by the Oklahoma state employees with respect to that State's restriction on partisan political activity. Indeed, it could reasonably be argued that the bookseller, with an economic incentive to sell materials that may fall within the statute's scope, may be less likely to be deterred than the employee who wishes to engage in political campaign activity. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381 (1977) (overbreadth analysis inapplicable to commercial speech). This requirement of substantial overbreadth may justifiably be applied to statutory challenges which arise in defense *773 of a criminal prosecution as well as civil enforcement or actions seeking a declaratory judgment. Cf. Parker v. Levy, 417 U.S. 733, 760 (1974). Indeed, the Court's practice when confronted with ordinary criminal laws that are sought to be applied against protected conduct is not to invalidate the law in toto, but rather to reverse the particular conviction. Cantwell v. Connecticut, 310 U.S. 296 (1940); Edwards v. South Carolina, 372 U.S. 229 (1973). We recognize, however, that the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial. We simply hold that the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth.\nB Applying these principles, we hold that \u00a7 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New York, as we have held, may constitutionally prohibit dissemination of material specified in \u00a7 263.15. While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of \u00a7 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on \"lewd exhibition[s] of the genitals.\" Under these circumstances, \u00a7 263.15 is \"not substantially overbroad and . . . whatever overbreadth may exist *774 should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.\" Broadrick v. Oklahoma, 413 U. S., at 615-616.\nIV Because \u00a7 263.15 is not substantially overbroad, it is unnecessary to consider its application to material that does not depict sexual conduct of a type that New York may restrict consistent with the First Amendment. As applied to Paul Ferber and to others who distribute similar material, the statute does not violate the First Amendment as applied to the States through the Fourteenth.[28] The judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. So ordered. JUSTICE BLACKMUN concurs in the result. JUSTICE O'CONNOR, concurring. Although I join the Court's opinion, I write separately to stress that the Court does not hold that New York must except \"material with serious literary, scientific, or educational value,\" ante, at 766, from its statute. The Court merely holds that, even if the First Amendment shelters such material, New York's current statute is not sufficiently overbroad to support respondent's facial attack. The compelling interests identified in today's opinion, see ante, at 756-764, suggest that the Constitution might in fact permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions. For example, a 12-year-old child photographed while *775 masturbating surely suffers the same psychological harm whether the community labels the photograph \"edifying\" or \"tasteless.\" The audience's appreciation of the depiction is simply irrelevant to New York's asserted interest in protecting children from psychological, emotional, and mental harm. An exception for depictions of serious social value, moreover, would actually increase opportunities for the content-based censorship disfavored by the First Amendment. As drafted, New York's statute does not attempt to suppress the communication of particular ideas. The statute permits discussion of child sexuality, forbidding only attempts to render the \"portrayal[s] somewhat more `realistic' by utilizing or photographing children.\" Ante, at 763. Thus, the statute attempts to protect minors from abuse without attempting to restrict the expression of ideas by those who might use children as live models. On the other hand, it is quite possible that New York's statute is overbroad because it bans depictions that do not actually threaten the harms identified by the Court. For example, clinical pictures of adolescent sexuality, such as those that might appear in medical textbooks, might not involve the type of sexual exploitation and abuse targeted by New York's statute. Nor might such depictions feed the poisonous \"kiddie porn\" market that New York and other States have attempted to regulate. Similarly, pictures of children engaged in rites widely approved by their cultures, such as those that might appear in issues of the National Geographic, might not trigger the compelling interests identified by the Court. It is not necessary to address these possibilities further today, however, because this potential overbreadth is not sufficiently substantial to warrant facial invalidation of New York's statute. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment. I agree with much of what is said in the Court's opinion. As I made clear in the opinion I delivered for the Court in *776 Ginsburg v. New York, 390 U.S. 629 (1968), the State has a special interest in protecting the well-being of its youth. Id., at 638-641. See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). This special and compelling interest, and the particular vulnerability of children, afford the State the leeway to regulate pornographic material, the promotion of which is harmful to children, even though the State does not have such leeway when it seeks only to protect consenting adults from exposure to such material. Ginsburg v. New York, supra, at 637, 638, n. 6, 642-643, n. 10. See also Jacobellis v. Ohio, 378 U.S. 184, 195 (1964) (opinion of BRENNAN, J.). I also agree with the Court that the \"tiny fraction,\" ante, at 773, of material of serious artistic, scientific, or educational value that could conceivably fall within the reach of the statute is insufficient to justify striking the statute on the grounds of overbreadth. See Broadrick v. Oklahoma, 413 U.S. 601, 630 (1973) (BRENNAN, J., dissenting). But in my view application of \u00a7 263.15 or any similar statute to depictions of children that in themselves do have serious literary, artistic, scientific, or medical value, would violate the First Amendment. As the Court recognizes, the limited classes of speech, the suppression of which does not raise serious First Amendment concerns, have two attributes. They are of exceedingly \"slight social value,\" and the State has a compelling interest in their regulation. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942). The First Amendment value of depictions of children that are in themselves serious contributions to art, literature, or science, is, by definition, simply not \"de minimis.\" See ante, at 761. At the same time, the State's interest in suppression of such materials is likely to be far less compelling. For the Court's assumption of harm to the child resulting from the \"permanent record\" and \"circulation\" of the child's \"participation,\" ante, at 759, lacks much of its force where the depiction is a serious contribution to art or science. The production of materials of serious value is not the \"low-profile, *777 clandestine industry\" that according to the Court produces purely pornographic materials. See ante, at 760. In short, it is inconceivable how a depiction of a child that is itself a serious contribution to the world of art or literature or science can be deemed \"material outside the protection of the First Amendment.\" See ante, at 763. I, of course, adhere to my view that, in the absence of exposure, or particular harm, to juveniles or unconsenting adults, the State lacks power to suppress sexually oriented materials. See, e. g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973) (BRENNAN, J., dissenting). With this understanding, I concur in the Court's judgment in this case. JUSTICE STEVENS, concurring in the judgment. Two propositions seem perfectly clear to me. First, the specific conduct that gave rise to this criminal prosecution is not protected by the Federal Constitution; second, the state statute that respondent violated prohibits some conduct that is protected by the First Amendment. The critical question, then, is whether this respondent, to whom the statute may be applied without violating the Constitution, may challenge the statute on the ground that it conceivably may be applied unconstitutionally to others in situations not before the Court. I agree with the Court's answer to this question but not with its method of analyzing the issue. Before addressing that issue, I shall explain why respondent's conviction does not violate the Constitution. The two films that respondent sold contained nothing more than lewd exhibition; there is no claim that the films included any material that had literary, artistic, scientific, or educational value.[1] Respondent was a willing participant in a commercial market that the State of New York has a legitimate interest in suppressing. The character of the State's interest in protecting children from sexual abuse justifies the imposition *778 of criminal sanctions against those who profit, directly or indirectly, from the promotion of such films. In this respect my evaluation of this case is different from the opinion I have expressed concerning the imposition of criminal sanctions for the promotion of obscenity in other contexts.[2] A holding that respondent may be punished for selling these two films does not require us to conclude that other users of these very films, or that other motion pictures containing similar scenes, are beyond the pale of constitutional protection. Thus, the exhibition of these films before a legislative committee studying a proposed amendment to a state law, or before a group of research scientists studying human behavior, could not, in my opinion, be made a crime. Moreover, it is at least conceivable that a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device, might include a scene from one of these films and, when viewed as a whole in a proper setting, be entitled to constitutional protection. The question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context. The Court's holding that this respondent may not challenge New York's statute as overbroad follows its discussion of the contours of the category of nonobscene child pornography that New York may legitimately prohibit. Having defined that category in an abstract setting,[3] the Court makes the *779 empirical judgment that the arguably impermissible application of the New York statute amounts to only a \"tiny fraction of the materials within the statute's reach.\" Ante, at 773. Even assuming that the Court's empirical analysis is sound,[4] I believe a more conservative approach to the issue would adequately vindicate the State's interest in protecting its children and cause less harm to the federal interest in free expression. A hypothetical example will illustrate my concern. Assume that the operator of a New York motion picture theater specializing in the exhibition of foreigu feature films is offered a full-length movie containing one scene that is plainly lewd if viewed in isolation but that nevertheless is part of a serious work of art. If the child actor resided abroad, New York's interest in protecting its young from sexual exploitation would be far less compelling than in the case before us. The federal interest in free expression would, however, be just as strong as if an adult actor had been used. There are at least three different ways to deal with the statute's potential application to that sort of case. First, at one extreme and as the Court appears to hold, the First Amendment inquiry might be limited to determining *780 whether the offensive scene, viewed in isolation, is lewd. When the constitutional protection is narrowed in this drastic fashion, the Court is probably safe in concluding that only a tiny fraction of the materials covered by the New York statute is protected. And with respect to my hypothetical exhibitor of foreign films, he need have no uncertainty about the permissible application of the statute; for the one lewd scene would deprive the entire film of any constitutional protection. Second, at the other extreme and as the New York Court of Appeals correctly perceived, the application of this Court's cases requiring that an obscenity determination be based on the artistic value of a production taken as a whole would afford the exhibitor constitutional protection and result in a holding that the statute is invalid because of its overbreadth. Under that approach, the rationale for invalidating the entire statute is premised on the concern that the exhibitor's understanding about its potential reach could cause him to engage in self-censorship. This Court's approach today substitutes broad, unambiguous, state-imposed censorship for the self-censorship that an overbroad statute might produce. Third, as an intermediate position, I would refuse to apply overbreadth analysis for reasons unrelated to any prediction concerning the relative number of protected communications that the statute may prohibit. Specifically, I would postpone decision of my hypothetical case until it actually arises. Advocates of a liberal use of overbreadth analysis could object to such postponement on the ground that it creates the risk that the exhibitor's uncertainty may produce self-censorship. But that risk obviously interferes less with the interest in free expression than does an abstract, advance ruling that the film is simply unprotected whenever it contains a lewd scene, no matter how brief. My reasons for avoiding overbreadth analysis in this case are more qualitative than quantitative. When we follow our *781 traditional practice of adjudicating difficult and novel constitutional questions only in concrete factual situations, the adjudications tend to be crafted with greater wisdom. Hypothetical rulings are inherently treacherous and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudication. Moreover, it is probably safe to assume that the category of speech that is covered by the New York statute generally is of a lower quality than most other types of communication. On a number of occasions, I have expressed the view that the First Amendment affords some forms of speech more protection from governmental regulation than other forms of speech.[5] Today the Court accepts this view, putting the category of speech described in the New York statute in its rightful place near the bottom of this hierarchy. Ante, at 761-763. Although I disagree with the Court's position that such speech is totally without First Amendment protection, I agree that generally marginal speech does not warrant the extraordinary protection afforded by the overbreadth doctrine.[6] Because I have no difficulty with the statute's application in this case, I concur in the Court's judgment. NOTES [*] Briefs of amici curiae urging reversal were filed by Edmund J. Burns, Gregory A. Loken, and William A. Cahill, Jr., for Covenant House; and by John J. Walsh for Morality in Media, Inc.\nMichael A. Bamberger filed a brief for the American Booksellers Association, Inc., et al., as amici curiae urging affirmance. Bruce A. Taylor filed a brief for Charles H. Keating, Jr., et al., as amici curiae. [1] \"[C]hild pornography and child prostitution have become highly organized, multimillion dollar industries that operate on a nationwide scale.\" S. Rep. No. 95-438, p. 5 (1977). One researcher has documented the existence of over 260 different magazines which depict children engaging in sexually explicit conduct. Ibid. \"Such magazines depict children, some as young as three to five years of age . . . . The activities featured range from lewd poses to intercourse, fellatio, cunnilingus, masturbation, rape, incest and sado-masochism.\" Id., at 6. In Los Angeles alone, police reported that 30,000 children have been sexually exploited. Sexual Exploitation of Children, Hearings before the Subcommittee on Select Education of the House Committee on Education and Labor, 95th Cong., 1st Sess., 41-42 (1977). [2] In addition to New York, 19 States have prohibited the dissemination of material depicting children engaged in sexual conduct regardless of whether the material is obscene. Ariz. Rev. Stat. Ann. \u00a7 13-3553 (Supp. 1981-1982); Colo. Rev. Stat. \u00a7 18-6-403 (Supp. 1981); Del. Code Ann., Tit. 11, \u00a7\u00a7 1108, 1109 (1979); Fla. Stat. \u00a7 847.014 (1981); Haw. Rev. Stat. \u00a7 707-751 (Supp. 1981); Ky. Rev. Stat. \u00a7\u00a7 531.320, 531.340-531.360 (Supp. 1980); La. Rev. Stat. Ann. \u00a7 14:81.1(A)(3) (West Supp. 1982); Mass. Gen. Laws Ann., ch. 272, \u00a7 29A (West Supp. 1982-1983); Mich. Comp. Laws Ann. \u00a7 750.145c(3) (1982-1983); Miss. Code Ann. \u00a7 97-5-33(4) (Supp. 1981); Mont. Code Ann. \u00a7 45-5-625 (1981); N. J. Stat. Ann. \u00a7 2C:24-4(b)(5) (West 1981); Okla. Stat., Tit. 21, \u00a7 1021.2 (1981); Pa. Stat. Ann., Tit. 18, \u00a7 6312(c) (Purdon 1982-1983); R. I. Gen. Laws \u00a7 11-9-1.1 (1981); Tex. Penal Code Ann. \u00a7 43.25 (1982); Utah Code Ann. \u00a7 76-10-1206.5(3) (Supp. 1981); W. Va. Code \u00a7 61-8C-3 (Supp. 1981); Wis. Stat. \u00a7 940.203(4) (1979-1980).\nFifteen States prohibit the dissemination of such material only if it is obscene. Ala. Code \u00a7\u00a7 13-7-231, 13-7-232 (Supp. 1981); Ark. Stat. Ann. \u00a7 41-4204 (Supp. 1981); Cal. Penal Code Ann. \u00a7 311.2(b) (West Supp. 1982) (general obscenity statute); Ill. Rev. Stat., ch. 38, \u00b6 11-20a(b)(1) (1979); Ind. Code \u00a7 35-30-10.1-2 (1979); Me. Rev. Stat. Ann., Tit. 17, \u00a7 2923(1) (Supp. 1981-1982); Minn. Stat. \u00a7\u00a7 617.246(3) and (4) (1980); Neb. Rev. Stat. \u00a7 28-1463(2) (1979); N. H. Rev. Stat. Ann. \u00a7 650:2(11) (Supp. 1981); N. D. Cent. Code \u00a7 12.1-27.1-01 (1976) (general obscenity statute); Ohio Rev. Code Ann. \u00a7 2907.321(A) (1982); Ore. Rev. Stat. \u00a7 163.485 (1981); S. D. Codified Laws \u00a7\u00a7 22-22-24, 22-22-25 (1979); Tenn. Code Ann. \u00a7 39-1020 (Supp. 1981); Wash. Rev. Code \u00a7 9.68A.030 (1981). The federal statute also prohibits dissemination only if the material is obscene. 18 U.S. C. \u00a7 2252(a) (1976 ed., Supp. IV). Two States prohibit dissemination only if the material is obscene as to minors. Conn. Gen. Stat. \u00a7 53a-196b (1981); Va. Code \u00a7 18.2-374.1 (1982). Twelve States prohibit only the use of minors in the production of the material. Alaska Stat. Ann. \u00a7 11.41.455 (1978); Ga. Code \u00a7 26-9943a(b) (1978); Idaho Code \u00a7 44-1306 (1977); Iowa Code \u00a7 728.12 (1981); Kan. Stat. Ann. \u00a7 21-3516 (1981); Md. Ann. Code, Art. 27, \u00a7 419A (Supp. 1981); Mo. Rev. Stat. \u00a7 568.060(1)(b) (1978); Nev. Rev. Stat. \u00a7 200.509 (1981); N. M. Stat. Ann. \u00a7 30-6-1 (Supp. 1982); N. C. Gen. Stat. \u00a7 14-190.6 (1981); S. C. Code \u00a7 16-15-380 (Supp. 1981); Wyo. Stat. \u00a7 14-3-102(a)(v)(E) (1978). [3] Class D felonies carry a maximum punishment of imprisonment for up to seven years as to individuals, and as to corporations a fine of up to $10,000. N. Y. Penal Law \u00a7\u00a7 70.00, 80.10 (McKinney 1975). Respondent Ferber was sentenced to 45 days in prison. [4] A state judge rejected Ferber's First Amendment attack on the two sections in denying a motion to dismiss the indictment. 96 Misc. 2d 669, 409 N. Y. S. 2d 632 (1978). [5] N. Y. Penal Law \u00a7 235.00(1) (McKinney 1980); People v. Illardo, 48 N.Y. 2d 408, 415, and n. 3, 399 N.E.2d 59, 62-63, and n. 3 (1979). [6] Hamling v. United States, 418 U.S. 87 (1974); Jenkins v. Georgia, 418 U.S. 153 (1974); Ward v. Illinois, 431 U.S. 767 (1977); Marks v. United States, 430 U.S. 188 (1977); Pinkus v. United States, 436 U.S. 293 (1978). [7] Thirty-seven States and the District of Columbia have either legislatively adopted or judicially incorporated the Miller test for obscenity. Ala. Code \u00a7 13A-12-150 (Supp. 1981); Ariz. Rev. Stat. Ann. \u00a7 13-3501(2) (1978); Ark. Stat. Ann. \u00a7 41-3502(6) (Supp. 1981); Colo. Rev. Stat. \u00a7 18-7-101(2) (Supp. 1981); Del. Code Ann., Tit. 11, \u00a7 1364 (1979); Lakin v. United States, 363 A.2d 990 (D. C. 1976); Ga. Code \u00a7 26-2101(b) (1978); Haw. Rev. Stat. \u00a7 712-1210(6) (Supp. 1981); Idaho Code \u00a7 18-4101(A) (1979); Iowa Code \u00a7 728.4 (1981) (only child pornography covered); Ind. Code \u00a7 35-30-10.1-1(c) (1979); Kan. Stat. Ann. \u00a7 21-4301 (2)(a) (1981); Ky. Rev. Stat. \u00a7 531.010(3) (1975); La. Rev. Stat. Ann. \u00a7\u00a7 14:106(A)(2) and (A)(3) (West Supp. 1982); Ebert v. Maryland State Bd. of Censors, 19 Md. App. 300, 313 A.2d 536 (1973); Mass. Gen. Laws Ann., ch. 272, \u00a7 31 (West Supp. 1982-1983); People v. Neumayer, 405 Mich. 341, 275 N.W.2d 230 (1979); State v. Welke, 298 Minn. 402, 216 N.W.2d 641 (1974); Mo. Rev. Stat. \u00a7 573.010(1) (1978); Neb. Rev. Stat. \u00a7 28-807(9) (1979); Nev. Rev. Stat. \u00a7 201.235 (1981); N. H. Rev. Stat. Ann. \u00a7 650:1(IV) (Supp. 1981); N. J. Stat. Ann. \u00a7 2C:34-2 (West 1981); N. Y. Penal Law \u00a7 235.00(1) (McKinney 1980); N. C. Gen. Stat. \u00a7 14-190.1(b) (1981); N. D. Cent. Code \u00a7 12.1-27.1-01(4) (1976); State v. Burgun, 56 Ohio St. 2d 354, 384 N.E.2d 255 (1978); McCrary v. State, 533 P.2d 629 (Okla. Crim. App. 1974); Ore. Rev. Stat. \u00a7 167.087(2) (1981); Pa. Stat. Ann., Tit. 18, \u00a7 5903(b) (Purdon Supp. 1982-1983); R. I. Gen. Laws \u00a7 11-31-1 (1981); S. C. Code \u00a7 16-15-260(a) (Supp. 1981); S. D. Codified Laws \u00a7 22-24-27(10) (1979); Tenn. Code Ann. \u00a7 39-3001(1) (Supp. 1981); Tex. Penal Code Ann. \u00a7 43.21(a) (1982); Utah Code Ann. \u00a7 76-10-1203(1) (1978); Va. Code \u00a7 18.2-372 (1982); 1982 Wash. Laws., ch. 184, \u00a7 1(2).\nFour States continue to follow the test approved in Memoirs v. Massachusetts, 383 U.S. 413 (1966). Cal. Penal Code Ann. \u00a7 311(a) (West Supp. 1982); Conn. Gen. Stat. \u00a7 53a-193 (1981); Fla. Stat. \u00a7 847.07 (1981); Ill. Rev. Stat., ch. 38, \u00b6 11-20(b) (1979). Five States regulate only the distribution of pornographic material to minors. Me. Rev. Stat. Ann., Tit. 17, \u00a7 2911 (Supp. 1981-1982); Mont. Code Ann. \u00a7 45-8-201 (1981); N. M. Stat. Ann. \u00a7 30-37-2 (Supp. 1982); Vt. Stat. Ann., Tit. 13, \u00a7 2802 (1974); W. Va. Code \u00a7 61-8A-2 (1977). Three state obscenity laws do not fall into any of the above categories. Miss. Code Ann. \u00a7 97-29-33 (1973), declared invalid in ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123 (Miss. 1976); Wis. Stat. \u00a7 944.21(1)(a) (1979-1980), declared invalid in State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 292 N.W.2d 807 (1980); Wyo. Stat. \u00a7 6-5-303 (1977). Alaska has no current state obscenity law. A number of States employ a different obscenity standard with respect to material distributed to children. See, e. g., Fla. Stat. \u00a7 847.0125 (1981). [8] In addition, the legislature found \"the sale of these movies, magazines and photographs depicting the sexual conduct of children to be so abhorrent to the fabric of our society that it urge[d] law enforcement officers to aggressively seek out and prosecute . . . the peddlers . . . of this filth by vigorously applying the sanctions contained in this act.\" 1977 N. Y. Laws, ch. 910, \u00a7 1. [9] \"[T]he use of children as . . . subjects of pornographic materials is very harmful to both the children and the society as a whole.\" S. Rep. No. 95-438, p. 5 (1977). It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults. Schoettle, Child Exploitation: A Study of Child Pornography, 19 J. Am. Acad. Child Psychiatry 289, 296 (1980) (hereafter cited as Child Exploitation); Schoettle, Treatment of the Child Pornography Patient, 137 Am. J. Psychiatry 1109, 1110 (1980); Densen-Gerner, Child Prostitution and Child Pornography: Medical, Legal, and Societal Aspects of the Commercial Exploitation of Children, reprinted in U. S. Dept. of Health and Human Services, Sexual Abuse of Children: Selected Readings 77, 80 (1980) (hereafter cited as Commercial Exploitation) (sexually exploited children pre-disposed to self-destructive behavior such as drug and alcohol abuse or prostitution). See generally Burgess & Holmstrom, Accessory-to-Sex: Pressure, Sex, and Secrecy, in A. Burgess, A. Groth, L. Holmstrom, & S. Sgroi, Sexual Assault of Children and Adolescents 85, 94 (1978); V. De Francis, Protecting the Child Victim of Sex Crimes Committed by Adults 169 (1969); Ellerstein & Canavan, Sexual Abuse of Boys, 134 Am. J. Diseases of Children 255, 256-257 (1980); Finch, Adult Seduction of the Child: Effects on the Child, Medical Aspects of Human Sexuality 170, 185 (Mar. 1973); Groth, Sexual Trauma in the Life Histories of Rapists and Child Molesters, 4 Victimology 10 (1979). Sexual molestation by adults is often involved in the production of child sexual performances. Sexual Exploitation of Children, A Report to the Illinois General Assembly by the Illinois Legislative Investigating Commission 30-31 (1980). When such performances are recorded and distributed, the child's privacy interests are also invaded. See n. 10, infra. [10] As one authority has explained: \"[P]ornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child's actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.\" Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981). See also Child Exploitation 292 (\"[I]t is the fear of exposure and the tension of keeping the act secret that seem to have the most profound emotional repercussions\"); Note, Protection of Children from Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U. Mich. J. Law Reform 295, 301 (1979) (hereafter cited as Use in Pornography) (interview with child psychiatrist) (\"The victim's knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child\"). Thus, distribution of the material violates \"the individual interest in avoiding disclosure of personal matters.\" Whalen v. Roe, 429 U.S. 589, 599 (1977). Respondent cannot undermine the force of the privacy interests involved here by looking to Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), and Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), cases protecting the right of newspapers to publish, respectively, the identity of a rape victim and a youth charged as a juvenile offender. Those cases only stand for the proposition that \"if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.\" Id., at 103. [11] See Sexual Exploitation of Children, Hearings before the Subcommittee on Crime of the House Judiciary Committee, 95th Cong., 1st Sess., 34 (1977) (statement of Charles Rembar) (\"It is an impossible prosecutorial job to try to get at the acts themselves\"); id., at 11 (statement of Frank Osanka, Professor of Social Justice and Sociology) (\"[W]e have to be very careful . . . that we don't take comfort in the existence of statutes that are on the books in the connection with the use of children in pornography. . . . There are usually no witnesses to these acts of producing pornography\"); id., at 69 (statement of Investigator Lloyd Martin, Los Angeles Police Department) (producers of child pornography use false names making difficult the tracing of material back from distributor). See also L. Tribe, American Constitutional Law 666, n. 62 (1978); Note, Child Pornography: A New Role for the Obscenity Doctrine, 1978 U. Ill. Law Forum 711, 716, n. 29; Use in Pornography 315 (\"passage of criminal laws aimed at producers without similar regulation of distributors will arguably shift the production process further underground\"). [12] In addition, legal obscenity under Miller is a function of \"contemporary community standards.\" 413 U.S., at 24. \"It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.\" Id., at 32. It would be equally unrealistic to equate a community's toleration for sexually oriented material with the permissible scope of legislation aimed at protecting children from sexual exploitation. Furthermore, a number of States rely on stricter obscenity tests, see n. 7, supra, under which successful prosecution for child pornography may be even more difficult. [13] One state committee studying the problem declared: \"The act of selling these materials is guaranteeing that there will be additional abuse of children.\" Texas House Select Committee on Child Pornography: Its Related Causes and Control 132 (1978). See also Commercial Exploitation 80 (\"Printed materials cannot be isolated or removed from the process involved in developing them\"). [14] In Giboney, a unanimous Court held that labor unions could be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. In Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973), the Court allowed an injunction against a newspaper's furtherance of illegal sex discrimination by placing of job advertisements in gender-designated columns. The Court stated: \"Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.\" Id., at 389. [15] In this connection we note that 18 U.S. C. \u00a7 2251 (1976 ed., Supp. IV), making it a federal offense for anyone to use children under the age of 16 in the production of pornographic materials, embraces all \"sexually explicit conduct\" without imposing an obscenity test. In addition, half of the state laws imposing criminal liability on the producer do not require the visual material to be legally obscene. Use in Pornography 307-308. [16] 96 Misc. 2d, at 676, 409 N. Y. S. 2d, at 637. This is not merely a hypothetical possibility. See Brief for Petitioner 25 and examples cited therein. [17] Sixteen States define a child as a person under age 18. Four States define a child as under 17 years old. The federal law and 16 States, including New York, define a child as under 16. Illinois and Nebraska define a child as a person under age 16 or who appears as a prepubescent. Ill. Rev. Stat., ch. 38, \u00b6 11-20a(a)(1)(A) (1979); Neb. Rev. Stat. \u00a7 28-1463 (1979). Indiana defines a child as one who is or appears to be under 16. Ind. Code. \u00a7\u00a7 35-30-10.1-2, 35-30-10.1-3 (1979). Kentucky provides for two age classifications (16 and 18) and varies punishment according to the victim's age. Ky. Rev. Stat. \u00a7\u00a7 531.300-531.370 (Supp. 1980). See Use in Pornography 307, n. 71 (collecting statutes). [18] Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), relied upon by the Court of Appeals, struck down a law against drive-in theaters showing nude scenes if movies could be seen from a public place. Since nudity, without more is protected expression, id., at 213, we proceeded to consider the underinclusiveness of the ordinance. The Jacksonville ordinance impermissibly singled out movies with nudity for special treatment while failing to regulate other protected speech which created the same alleged risk to traffic. Today, we hold that child pornography as defined in \u00a7 263.15 is unprotected speech subject to content-based regulation. Hence, it cannot be underinclusive or unconstitutional for a State to do precisely that. [19] It is often impossible to determine where such material is produced. The Senate Report accompanying federal child pornography legislation stressed that \"it is quite common for photographs or films made in the United States to be sent to foreign countries to be reproduced and then returned to this country in order to give the impression of foreign origin.\" S. Rep. No. 95-438, p. 6 (1977). In addition, States have not limited their distribution laws to material produced within their own borders because the maintenance of the market itself \"leaves open the financial conduit by which the production of such material is funded and materially increases the risk that [local] children will be injured.\" 52 N.Y. 2d 674, 688, 422 N.E.2d 523, 531 (1981) (Jasen, J., dissenting). [20] In addition to prudential restraints, the traditional rule is grounded in Art. III limits on the jurisdiction of federal courts to actual cases and controversies.\n\"This Court, as is the case with all federal courts, `has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39.\" United States v. Raines, 362 U.S. 17, 21 (1960). [21] Overbreadth challenges are only one type of facial attack. A person whose activity may be constitutionally regulated nevertheless may argue that the statute under which he is convicted or regulated is invalid on its face. See, e. g., Terminiello v. City of Chicago, 337 U.S. 1, 5 (1949). See generally Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 10-14. [22] A. Bickel, The Least Dangerous Branch 115-116 (1962). [23] Frankfurter & Hart, The Business of the Supreme Court at October Term, 1934, 49 Harv. L. Rev. 68, 95-96 (1935). [24] When a federal court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction. Crowell v. Benson, 285 U.S. 22, 62 (1932). Accord, e. g., Haynes v. United States, 390 U.S. 85, 92 (1968) (dictum); Schneider v. Smith, 390 U.S. 17, 27 (1968); United States v. Rumely, 345 U.S. 41, 45 (1953); Ashwander v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). Furthermore, if the federal statute is not subject to a narrowing construction and is impermissibly overbroad, it nevertheless should not be stricken down on its face; if it is severable, only the unconstitutional portion is to be invalidated. United States v. Thirty-seven Photographs, 402 U.S. 363 (1971).\nA state court is also free to deal with a state statute in the same way. If the invalid reach of the law is cured, there is no longer reason for proscribing the statute's application to unprotected conduct. Here, of course, we are dealing with a state statute on direct review of a state-court decision that has construed the statute. Such a construction is binding on us. [25] Parker v. Levy, 417 U.S. 733, 760 (1974) (\"This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the `remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct . . . .' CSC v. Letter Carriers, 413 U.S. 548, 580-581 (1973)\"). See Bogen, First Amendment Ancillary Doctrines, 37 Md. L. Rev. 679, 712-714 (1978); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 860-861 (1970). [26] In Gooding v. Wilson, 405 U.S. 518, 519, 527 (1972), the Court's invalidation of a Georgia statute making it a misdemeanor to use \"`opprobrious words or abusive language, tending to cause a breach of the peace'\" followed from state judicial decisions indicating that \"merely to speak words offensive to some who hear them\" could constitute a \"breach of the peace.\" Cases invalidating laws requiring members of a \"subversive organization\" to take a loyalty oath, Baggett v. Bullitt, 377 U.S. 360 (1964), or register with the government, Dombrowski v. Pfister, 380 U.S. 479 (1965), can be explained on the basis that the laws involved, unlike \u00a7 263.15, defined no central core of constitutionally regulable conduct; the entire scope of the laws was subject to the uncertainties and vagaries of prosecutorial discretion. See also Bigelow v. Virginia, 421 U.S. 809, 817 (1975) (\"the facts of this case well illustrate `the statute's potential for sweeping and improper applications'\") (citation omitted); NAACP v. Button, 371 U.S. 415, 433 (1963) (\"We read the decree of the Virginia Supreme Court of Appeals . . . as proscribing any arrangement by which prospective litigants are advised to seek the assistance of particular attorneys\"); Thornhill v. Alabama, 310 U.S. 88, 97 (1940) (the statute \"does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press\"). [27] \"A substantial overbreadth rule is implicit in the chilling effect rationale.. . . [T]he presumption must be that only substantially overbroad laws set up the kind and degree of chill that is judicially cognizable.\" Moreover, \"[w]ithout a substantial overbreadth limitation, review for overbreadth would be draconian indeed. It is difficult to think of a law that is utterly devoid of potential for unconstitutionality in some conceivable application.\" Note, 83 Harv. L. Rev., supra n. 25, at 859, and n. 61. [28] There is no argument that the films sold by respondent do not fall squarely within the category of activity we have defined as unprotected. Therefore, no independent examination of the material is necessary to assure ourselves that the judgment here \"does not constitute a forbidden intrusion on the field of free expression.\" New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964). [1] Respondent's counsel conceded at oral argument that a finding that the films are obscene would have been consistent with the Miller definition. Tr. of Oral Arg. 41. [2] See Burch v. Louisiana, 441 U.S. 130, 139 (STEVENS, J., concurring); Pinkus v. United States, 436 U.S. 293, 305 (STEVENS, J., concurring); Ballew v. Georgia, 435 U.S. 223, 245 (STEVENS, J., concurring); Smith v. United States, 431 U.S. 291, 311-321 (STEVENS, J., dissenting); Marks v. United States, 430 U.S. 188, 198 (STEVENS, J., concurring in part and dissenting in part); see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 84 (STEVENS, J., concurring in judgment); FCC v. Pacifica Foundation, 438 U.S. 726, 750 (opinion of STEVENS, J.). [3] \"The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.\" Ante, at 764. [4] The Court's analysis is directed entirely at the permissibility of the statute's coverage of nonobscene material. Its empirical evidence, however, is drawn substantially from congressional Committee Reports that ultimately reached the conclusion that a prohibition against obscene child pornography \u2014coupled with sufficiently stiff sanctions\u2014is an adequate response to this social problem. The Senate Committee on the Judiciary concluded that \"virtually all of the materials that are normally considered child pornography are obscene under the current standards,\" and that \"[i]n comparison with this blatant pornography, non-obscene materials that depict children are very few and very inconsequential.\" S. Rep. No. 95-438, p. 13 (1977); see also H. R. Rep. No. 95-696, pp. 7-8 (1977). The coverage of the federal statute is limited to obscene material. See 18 U.S. C. \u00a7 2252(a) (1976 ed., Supp. IV). [5] See, e. g., Schad v. Borough of Mount Ephraim, 452 U. S., at 80, 83 (STEVENS, J., concurring in judgment); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 544-548 (STEVENS, J., concurring in judgment); FCC v. Pacifica Foundation, 438 U. S., at 744-748 (opinion of STEVENS, J.); Carey v. Population Services International, 431 U.S. 678, 716-717 (STEVENS, J., concurring in part and concurring in judgment); Smith v. United States, 431 U. S., at 317-319 (STEVENS, J., dissenting); Young v. American Mini Theatres, Inc., 427 U.S. 50, 66-71 (opinion of STEVENS, J.). [6] See FCC v. Pacifica Foundation, supra, at 742-743 (opinion of STEVENS, J.); Young v. American Mini Theatres, Inc., supra, at 59-61; see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 544-548 (STEVENS, J., dissenting in part); Schad v. Borough of Mount Ephraim, supra, at 85 (STEVENS, J., concurring in judgment).","meta":{"dup_signals":{"dup_doc_count":1240,"dup_dump_count":97,"dup_details":{"2024-30":2,"2024-26":3,"2024-22":1,"2024-18":3,"2024-10":4,"2017-13":7,"2015-18":52,"2015-11":51,"2015-06":54,"2014-10":33,"2013-48":39,"2013-20":24,"2023-50":1,"2023-40":1,"2023-23":5,"2023-14":3,"2023-06":3,"2022-49":1,"2022-40":1,"2022-33":1,"2022-27":2,"2022-21":1,"2022-05":3,"2021-49":3,"2021-43":1,"2021-31":1,"2021-25":3,"2021-21":2,"2021-17":3,"2021-10":3,"2021-04":2,"2020-50":1,"2020-45":4,"2020-40":1,"2020-34":1,"2020-29":6,"2020-16":3,"2020-10":2,"2020-05":4,"2019-51":2,"2019-47":4,"2019-43":2,"2019-39":2,"2019-35":1,"2019-30":3,"2019-26":4,"2019-22":1,"2019-18":7,"2019-13":1,"2019-09":4,"2019-04":1,"2018-51":4,"2018-47":3,"2018-43":3,"2018-39":1,"2018-34":3,"2018-30":1,"2018-26":2,"2018-22":1,"2018-17":2,"2018-13":3,"2018-09":2,"2018-05":3,"2017-51":3,"2017-47":2,"2017-43":3,"2017-39":4,"2017-34":4,"2017-30":3,"2017-26":4,"2017-22":4,"2017-17":4,"2017-09":44,"2017-04":4,"2016-50":4,"2016-44":5,"2016-40":5,"2016-36":5,"2016-30":5,"2016-26":2,"2016-22":3,"2016-18":2,"2016-07":42,"2015-48":42,"2015-40":27,"2015-35":40,"2015-32":44,"2015-27":38,"2015-22":12,"2015-14":47,"2014-52":46,"2014-49":50,"2014-42":79,"2014-41":73,"2014-35":63,"2014-23":61,"2014-15":71}}},"subset":"freelaw"}
{"text":"356 U.S. 86 (1958) TROP v. DULLES, SECRETARY OF STATE, ET AL. No. 70. Supreme Court of United States. Argued May 2, 1957. Restored to the calendar for reargument June 24, 1957. Reargued October 28-29, 1957. Decided March 31, 1958. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. *87 Osmond K. Fraenkel argued the cause and filed the briefs for petitioner. Oscar H. Davis argued the cause for respondents on the original argument, and Solicitor General Rankin on the reargument. With them on the briefs were Warren Olney, III, then Assistant Attorney General, and J. F. Bishop. Beatrice Rosenberg was also with them on the brief on the reargument. MR. CHIEF JUSTICE WARREN announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE WHITTAKER join. The petitioner in this case, a native-born American, is declared to have lost his United States citizenship and become stateless by reason of his conviction by court-martial for wartime desertion. As in Perez v. Brownell, ante, p. 44, the issue before us is whether this forfeiture of citizenship comports with the Constitution. The facts are not in dispute. In 1944 petitioner was a private in the United States Army, serving in French Morocco. On May 22, he escaped from a stockade at Casablanca, where he had been confined following a previous breach of discipline. The next day petitioner and a companion were walking along a road towards Rabat, in the general direction back to Casablanca, when an Army truck approached and stopped. A witness testified that petitioner boarded the truck willingly and that no words were spoken. In Rabat petitioner was turned over to military police. Thus ended petitioner's \"desertion.\" He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base. He testified that at the *88 time he and his companion were picked up by the Army truck, \"we had decided to return to the stockade. The going was tough. We had no money to speak of, and at the time we were on foot and we were getting cold and hungry.\" A general court-martial convicted petitioner of desertion and sentenced him to three years at hard labor, forfeiture of all pay and allowances and a dishonorable discharge. In 1952 petitioner applied for a passport. His application was denied on the ground that under the provisions of Section 401 (g) of the Nationality Act of 1940, as amended,[1] he had lost his citizenship by reason of his conviction and dishonorable discharge for wartime desertion. In 1955 petitioner commenced this action in the District Court, seeking a declaratory judgment that he is a citizen. The Government's motion for summary judgment was granted, and the Court of Appeals for the Second Circuit affirmed, Chief Judge Clark dissenting. 239 F. 2d 527. We granted certiorari. 352 U. S. 1023. *89 Section 401 (g), the statute that decrees the forfeiture of this petitioner's citizenship, is based directly on a Civil War statute, which provided that a deserter would lose his \"rights of citizenship.\"[2] The meaning of this phrase was not clear.[3] When the 1940 codification and revision of the nationality laws was prepared, the Civil War statute was amended to make it certain that what a convicted deserter would lose was nationality itself.[4] In 1944 the *90 statute was further amended to provide that a convicted deserter would lose his citizenship only if he was dismissed from the service or dishonorably discharged.[5] At the same time it was provided that citizenship could be regained if the deserter was restored to active duty in wartime with the permission of the military authorities. Though these amendments were added to ameliorate the harshness of the statute,[6] their combined effect produces a result that poses far graver problems than the ones that were sought to be solved. Section 401 (g) as amended now gives the military authorities complete discretion to decide who among convicted deserters shall continue to be Americans and who shall be stateless. By deciding whether to issue and execute a dishonorable discharge and whether to allow a deserter to re-enter the armed forces, the military becomes the arbiter of citizenship. And the domain given to it by Congress is not as narrow as might be supposed. Though the crime of desertion is one of the most serious in military law, it is by no means a rare event for a soldier to be convicted of this crime. The elements of desertion are simply absence from duty plus the intention not to return.[7] Into this *91 category falls a great range of conduct, which may be prompted by a variety of motives\u2014fear, laziness, hysteria or any emotional imbalance. The offense may occur not only in combat but also in training camps for draftees in this country.[8] The Solicitor General informed the Court that during World War II, according to Army estimates, approximately 21,000 soldiers and airmen were convicted of desertion and given dishonorable discharges by the sentencing courts-martial and that about 7,000 of these were actually separated from the service and thus rendered stateless when the reviewing authorities refused to remit their dishonorable discharges. Over this group of men, enlarged by whatever the corresponding figures may be for the Navy and Marines, the military has been given the power to grant or withhold citizenship. And the number of youths subject to this power could easily be enlarged simply by expanding the statute to cover crimes other than desertion. For instance, a dishonorable discharge itself might in the future be declared to be sufficient to justify forfeiture of citizenship. Three times in the past three years we have been confronted with cases presenting important questions bearing on the proper relationship between civilian and military authority in this country.[9] A statute such as Section 401 (g) raises serious issues in this area, but in our view of this case it is unnecessary to deal with those problems. We conclude that the judgment in this case must be reversed for the following reasons.\nI. In Perez v. Brownell, supra, I expressed the principles that I believe govern the constitutional status of United *92 States citizenship. It is my conviction that citizenship is not subject to the general powers of the National Government and therefore cannot be divested in the exercise of those powers. The right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship. Under these principles, this petitioner has not lost his citizenship. Desertion in wartime, though it may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state. Section 401 (g) is not limited to cases of desertion to the enemy, and there is no such element in this case. This soldier committed a crime for which he should be and was punished, but he did not involve himself in any way with a foreign state. There was no dilution of his allegiance to this country. The fact that the desertion occurred on foreign soil is of no consequence. The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country. Citizenship is not a license that expires upon misbehavior. The duties of citizenship are numerous, and the discharge of many of these obligations is essential to the security and well-being of the Nation. The citizen who fails to pay his taxes or to abide by the laws safeguarding the integrity of elections deals a dangerous blow to his country. But could a citizen be deprived of his nationality for evading these basic responsibilities of citizenship? In time of war the citizen's duties include not only the military defense of the Nation but also full participation in the manifold activities of the civilian ranks. Failure to perform any of these obligations may cause the Nation serious injury, and, in appropriate circumstances, the punishing power is available to deal with derelictions of duty. But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship *93 is not a weapon that the Government may use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship, and this petitioner has done neither, I believe his fundamental right of citizenship is secure. On this ground alone the judgment in this case should be reversed.\nII. Since a majority of the Court concluded in Perez v. Brownell that citizenship may be divested in the exercise of some governmental power, I deem it appropriate to state additionally why the action taken in this case exceeds constitutional limits, even under the majority's decision in Perez. The Court concluded in Perez that citizenship could be divested in the exercise of the foreign affairs power. In this case, it is urged that the war power is adequate to support the divestment of citizenship. But there is a vital difference between the two statutes that purport to implement these powers by decreeing loss of citizenship. The statute in Perez decreed loss of citizenship\u2014so the majority concluded\u2014 to eliminate those international problems that were thought to arise by reason of a citizen's having voted in a foreign election. The statute in this case, however, is entirely different. Section 401 (g) decrees loss of citizenship for those found guilty of the crime of desertion. It is essentially like Section 401 (j) of the Nationality Act, decreeing loss of citizenship for evading the draft by remaining outside the United States.[10] This provision *94 was also before the Court in Perez, but the majority declined to consider its validity. While Section 401 (j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed, Section 401 (g), the provision in this case, accords the accused deserter at least the safeguards of an adjudication of guilt by a court-martial. The constitutional question posed by Section 401 (g) would appear to be whether or not denationalization may be inflicted as a punishment, even assuming that citizenship may be divested pursuant to some governmental power. But the Government contends that this statute does not impose a penalty and that constitutional limitations on the power of Congress to punish are therefore inapplicable. We are told this is so because a committee of Cabinet members, in recommending this legislation to the Congress, said it \"technically is not a penal law.\"[11] How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them! Manifestly the issue of whether Section 401 (g) is a penal law cannot be thus determined. Of course it is relevant to know the classification employed by the Cabinet Committee that played such an important role in the preparation of the Nationality Act of 1940. But it is equally relevant to know that this very committee acknowledged that Section 401 (g) was based on the provisions of the 1865 Civil War statute, which the committee itself termed \"distinctly penal in character.\"[12] Furthermore, the 1865 *95 statute states in terms that deprivation of the rights of citizenship is \"in addition to the other lawful penalties of the crime of desertion . . . .\"[13] And certainly it is relevant to know that the reason given by the Senate Committee on Immigration as to why loss of nationality under Section 401 (g) can follow desertion only after conviction by court-martial was \"because the penalty is so drastic.\"[14] Doubtless even a clear legislative classification of a statute as \"non-penal\" would not alter the fundamental nature of a plainly penal statute.[15] With regard to Section 401 (g) the fact is that the views of the Cabinet Committee and of the Congress itself as to the nature of the statute are equivocal, and cannot possibly provide the answer to our inquiry. Determination of whether this statute is a penal law requires careful consideration. In form Section 401 (g) appears to be a regulation of nationality. The statute deals initially with the status of nationality and then specifies the conduct that will result in loss of that status. But surely form cannot provide the answer to this inquiry. A statute providing that \"a person shall lose his liberty by committing bank robbery,\" though in form a regulation of liberty, would nonetheless be penal. Nor would its penal effect be altered by labeling it a regulation of banks or by arguing that there is a rational connection between safeguarding banks and imprisoning bank robbers. The inquiry must be directed to substance. This Court has been called upon to decide whether or not various statutes were penal ever since 1798. Calder v. Bull, 3 Dall. 386. Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto *96 laws,[16] it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties.[17] In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute.[18] If the statute imposes a disability for the purposes of punishment \u2014that is, to reprimand the wrongdoer, to deter others, etc.\u2014it has been considered penal.[19] But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.[20] The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote.[21] If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of *97 the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise.[22] The same reasoning applies to Section 401 (g). The purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve. Denationalization in this case is not even claimed to be a means of solving international problems, as was argued in Perez. Here the purpose is punishment, and therefore the statute is a penal law. It is urged that this statute is not a penal law but a regulatory provision authorized by the war power. It cannot be denied that Congress has power to prescribe rules governing the proper performance of military obligations, of which perhaps the most significant is the performance of one's duty when hazardous or important service is required. But a statute that prescribes the consequence that will befall one who fails to abide by these regulatory provisions is a penal law. Plainly legislation prescribing imprisonment for the crime of desertion is penal in nature. If loss of citizenship is substituted for imprisonment, it cannot fairly be said that the use of this particular sanction transforms the fundamental nature of the statute. In fact, a dishonorable discharge with consequent loss of citizenship might be the only punishment meted out by a court-martial. During World War II the threat of this punishment was explicitly communicated by the Army to soldiers in the field.[23] If this statute taking away citizenship is a congressional exercise of the war power, then it cannot rationally be treated other than as a penal law, because it imposes the sanction of denationalization *98 for the purpose of punishing transgression of a standard of conduct prescribed in the exercise of that power. The Government argues that the sanction of denationalization imposed by Section 401 (g) is not a penalty because deportation has not been so considered by this Court. While deportation is undoubtedly a harsh sanction that has a severe penal effect, this Court has in the past sustained deportation as an exercise of the sovereign's power to determine the conditions upon which an alien may reside in this country.[24] For example, the statute[25] authorizing deportation of an alien convicted under the 1917 Espionage Act[26] was viewed, not as designed to punish him for the crime of espionage, but as an implementation of the sovereign power to exclude, from which the deporting power is derived. Mahler v. Eby, 264 U. S. 32. This view of deportation may be highly fictional, but even if its validity is conceded, it is wholly inapplicable to this case. No one contends that the Government has, in addition to the power to exclude all aliens, a sweeping power to denationalize all citizens. Nor does comparison to denaturalization eliminate the penal effect of denationalization in this case. Denaturalization is not imposed to penalize the alien for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens.[27] In short, the fact that deportation and denaturalization for fraudulent procurement of citizenship may be imposed for purposes other than punishment affords no *99 basis for saying that in this case denationalization is not a punishment. Section 401 (g) is a penal law, and we must face the question whether the Constitution permits the Congress to take away citizenship as a punishment for crime. If it is assumed that the power of Congress extends to divestment of citizenship, the problem still remains as to this statute whether denationalization is a cruel and unusual punishment within the meaning of the Eighth Amendment.[28] Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime. The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment. At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment\u2014and they are forceful\u2014 the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination. The exact scope of the constitutional phrase \"cruel and unusual\" has not been detailed by this Court.[29] But the *100 basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688,[30] and the principle it represents can be traced back to the Magna Carta.[31] The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U. S. 349. The Court recognized in that case that the words of the Amendment are not precise,[32] and that their *101 scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. We believe, as did Chief Judge Clark in the court below,[33] that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination *102 at any time by reason of deportation.[34] In short, the expatriate has lost the right to have rights. This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies.[35] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.[36] The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance.[37] Even statutes of this sort are generally applicable primarily *103 to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion.[38] In this country the Eighth Amendment forbids this to be done. In concluding as we do that the Eighth Amendment forbids Congress to punish by taking away citizenship, we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an Act of the National Legislature is challenged. No member of the Court believes that in this case the statute before us can be construed to avoid the issue of constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes but neither can they sanction as being merely unwise that which the Constitution forbids. We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution. The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence. The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we *104 do not, the words of the Constitution become little more than good advice. When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication. We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court was established it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case. The judgment of the Court of Appeals for the Second Circuit is reversed and the cause is remanded to the District Court for appropriate proceedings. Reversed and remanded. MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins, concurring. While I concur in the opinion of THE CHIEF JUSTICE there is one additional thing that needs to be said. Even if citizenship could be involuntarily divested, I do not believe that the power to denationalize may be placed in the hands of military authorities. If desertion or other misconduct is to be a basis for forfeiting citizenship, guilt should be determined in a civilian court of justice where all the protections of the Bill of Rights guard the fairness of the outcome. Such forfeiture should not rest on the findings of a military tribunal. Military courts may try soldiers and punish them for military offenses, but they should not have the last word on the soldier's right to citizenship. The statute held invalid *105 here not only makes the military's finding of desertion final but gives military authorities discretion to choose which soldiers convicted of desertion shall be allowed to keep their citizenship and which ones shall thereafter be stateless. Nothing in the Constitution or its history lends the slightest support for such military control over the right to be an American citizen. MR. JUSTICE BRENNAN, concurring. In Perez v. Brownell, ante, p. 44, also decided today, I agreed with the Court that there was no constitutional infirmity in \u00a7 401 (e), which expatriates the citizen who votes in a foreign political election. I reach a different conclusion in this case, however, because I believe that \u00a7 401 (g), which expatriates the wartime deserter who is dishonorably discharged after conviction by court-martial, lies beyond Congress' power to enact. It is, concededly, paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war. The loss of citizenship may have as ominous significance for the individual in the one case as in the other. Why then does not the Constitution prevent the expatriation of the voter as well as the deserter? Here, as in Perez v. Brownell, we must inquire whether there exists a relevant connection between the particular legislative enactment and the power granted to Congress by the Constitution. The Court there held that such a relevant connection exists between the power to maintain relations with other sovereign nations and the power to expatriate the American who votes in a foreign election. (1) Within the power granted to Congress to regulate the conduct of foreign affairs lies the power to deal with evils which might obstruct or embarrass our diplomatic *106 interests. Among these evils, Congress might believe, is that of voting by American citizens in political elections of other nations.[1] Whatever the realities of the situation, many foreign nations may well view political activity on the part of Americans, even if lawful, as either expressions of official American positions or else as improper meddling in affairs not their own. In either event the reaction is liable to be detrimental to the interests of the United States. (2) Finding that this was an evil which Congress was empowered to prevent, the Court concluded that expatriation was a means reasonably calculated to achieve this end. Expatriation, it should be noted, has the advantage of acting automatically, for the very act of casting the ballot is the act of denationalization, which could have the effect of cutting off American responsibility for the consequences. If a foreign government objects, our answer should be conclusive\u2014the voter is no longer one of ours. Harsh as the consequences may be to the individual concerned, Congress has ordained the loss of citizenship simultaneously with the act of voting because Congress might reasonably believe that in these circumstances there is no acceptable alternative to expatriation as a means of avoiding possible embarrassments to our relations with foreign nations.[2] And where Congress has determined that considerations of the highest national importance indicate a course of action for which an adequate *107 substitute might rationally appear lacking, I cannot say that this means lies beyond Congress' power to choose. Cf. Korematsu v. United States, 323 U. S. 214. In contrast to \u00a7 401 (e), the section with which we are now concerned, \u00a7 401 (g), draws upon the power of Congress to raise and maintain military forces to wage war. No pretense can here be made that expatriation of the deserter in any way relates to the conduct of foreign affairs, for this statute is not limited in its effects to those who desert in a foreign country or who flee to another land. Nor is this statute limited in its application to the deserter whose conduct imports \"elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship.\" Perez v. Brownell, supra, at 61. The history of this provision, indeed, shows that the essential congressional purpose was a response to the needs of the military in maintaining discipline in the armed forces, especially during wartime. There can be no serious question that included in Congress' power to maintain armies is the power to deal with the problem of desertion, an act plainly destructive, not only of the military establishment as such, but, more importantly, of the Nation's ability to wage war effectively. But granting that Congress is authorized to deal with the evil of desertion, we must yet inquire whether expatriation is a means reasonably calculated to achieve this legitimate end and thereby designed to further the ultimate congressional objective\u2014the successful waging of war. Expatriation of the deserter originated in the Act of 1865, 13 Stat. 490, when wholesale desertion and draftlaw violations seriously threatened the effectiveness of the Union armies.[3] The 1865 Act expressly provided *108 that expatriation was to be \"in addition to the other lawful penalties of the crime of desertion . . . .\" This was emphasized in the leading case under the 1865 Act, Huber v. Reily, 53 Pa. 112, decided by the Pennsylvania Supreme Court little more than a year after passage of the Act. The court said that \"Its avowed purpose is to add to the penalties which the law had previously affixed to the offence of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties.\" Id., at 114-115. But, although it imposed expatriation entirely as an added punishment for crime, the 1865 Act did not expressly make conviction by court-martial a prerequisite to that punishment, as was the case with the conventional penalties. The Pennsylvania Supreme Court felt that Huber was right in contending that this was a serious constitutional objection: \"[T]he act proposes to inflict pains and penalties upon offenders before and without a trial and conviction by due process of law, and . . . it is therefore prohibited by the Bill of Rights.\" 53 Pa., at 115. The court, however, construed the statute so as to avoid these constitutional difficulties, holding that loss of citizenship, like other penalties for desertion, followed only upon conviction by court-martial. This view of the 1865 Act was approved by this Court in Kurtz v. Moffitt, 115 U. S. 487, 501, and, as noted there, the same view \"has been uniformly held by the civil courts as well as by the military authorities.\" See McCafferty v. Guyer, 59 Pa. 109; State v. Symonds, 57 Me. 148; Gotcheus v. Matheson, 58 Barb. (N. Y.) 152; 2 Winthrop, Military Law and Precedents (2d ed. 1896), 1001.[4] Of *109 particular significance, moreover, is the fact that the Congress has confirmed the correctness of the view that it purposed expatriation of the deserter solely as additional punishment. The present \u00a7 401 (g) merely incorporates the 1865 provision in the codification which became the 1940 Nationality Act.[5] But now there is expressly stated what was omitted from the 1865 Act, namely, that the deserter shall be expatriated \"if and when he is convicted thereof by court martial . . . .\" 54 Stat. 1169, as amended, 8 U. S. C. \u00a7 1481 (a) (8).[6] It is difficult, indeed, to see how expatriation of the deserter helps wage war except as it performs that function when imposed as punishment. It is obvious that expatriation cannot in any wise avoid the harm apprehended by Congress. After the act of desertion, only *110 punishment can follow, for the harm has been done. The deserter, moreover, does not cease to be an American citizen at the moment he deserts. Indeed, even conviction does not necessarily effect his expatriation, for dishonorable discharge is the condition precedent to loss of citizenship. Therefore, if expatriation is made a consequence of desertion, it must stand together with death and imprisonment\u2014as a form of punishment. To characterize expatriation as punishment is, of course, but the beginning of critical inquiry. As punishment it may be extremely harsh, but the crime of desertion may be grave indeed. However, the harshness of the punishment may be an important consideration where the asserted power to expatriate has only a slight or tenuous relation to the granted power. In its material forms no one can today judge the precise consequences of expatriation, for happily American law has had little experience with this status, and it cannot be said hypothetically to what extent the severity of the status may be increased consistently with the demands of due process. But it can be supposed that the consequences of greatest weight, in terms of ultimate impact on the petitioner, are unknown and unknowable.[7] Indeed, in truth, he may live out his life with but minor inconvenience. He may perhaps live, work, marry, raise a family, and generally experience a satisfactorily happy life. Nevertheless it cannot be denied that the impact of expatriation\u2014 especially where statelessness is the upshot\u2014may be severe. Expatriation, in this respect, constitutes an *111 especially demoralizing sanction. The uncertainty, and the consequent psychological hurt, which must accompany one who becomes an outcast in his own land must be reckoned a substantial factor in the ultimate judgment. In view of the manifest severity of this sanction, I feel that we should look closely at its probable effect to determine whether Congress' imposition of expatriation as a penal device is justified in reason. Clearly the severity of the penalty, in the case of a serious offense, is not enough to invalidate it where the nature of the penalty is rationally directed to achieve the legitimate ends of punishment. The novelty of expatriation as punishment does not alone demonstrate its inefficiency. In recent years we have seen such devices as indeterminate sentences and parole added to the traditional term of imprisonment. Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society's own best protection. Of course, rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution. What then is the relationship of the punishment of expatriation to these ends of the penal law? It is perfectly obvious that it constitutes the very antithesis of rehabilitation, for instead of guiding the offender back into the useful paths of society it excommunicates him and makes him, literally, an outcast. I can think of no more certain way in which to make a man in whom, perhaps, rest the seeds of serious antisocial behavior more likely to pursue further a career of unlawful activity than to place on him the stigma of the derelict, uncertain of many of his basic rights. Similarly, it must be questioned whether expatriation *112 can really achieve the other effects sought by society in punitive devices. Certainly it will not insulate society from the deserter, for unless coupled with banishment the sanction leaves the offender at large. And as a deterrent device this sanction would appear of little effect, for the offender, if not deterred by thought of the specific penalties of long imprisonment or even death, is not very likely to be swayed from his course by the prospect of expatriation.[8] However insidious and demoralizing may be the actual experience of statelessness, its contemplation in advance seems unlikely to invoke serious misgiving, for none of us yet knows its ramifications. In the light of these considerations, it is understandable that the Government has not pressed its case on the basis of expatriation of the deserter as punishment for his crime. Rather, the Government argues that the necessary nexus to the granted power is to be found in the idea that legislative withdrawal of citizenship is justified in this case because Trop's desertion constituted a refusal to perform one of the highest duties of American citizenship\u2014the bearing of arms in a time of desperate national peril. It cannot be denied that there is implicit in this a certain rough justice. He who refuses to act as an American should no longer be an American\u2014what could be fairer? But I cannot see that this is anything other than forcing retribution from the offender\u2014naked vengeance. But many acts of desertion certainly fall far short of a \"refusal to perform this ultimate duty of American citizenship.\" *113 Desertion is defined as \"absence without leave accompanied by the intention not to return.\" Army Manual for Courts-Martial (1928) 142. The offense may be quite technical, as where an officer, \"having tendered his resignation and prior to due notice of the acceptance of the same, quits his post or proper duties without leave and with intent to absent himself permanently therefrom. . . .\" Article of War 28 (1920), 41 Stat. 792. Desertion is also committed where a soldier, without having received a regular discharge, re-enlists in the same or another service. The youngster, for example, restive at his assignment to a supply depot, who runs off to the front to be in the fight, subjects himself to the possibility of this sanction. Yet the statute imposes the penalty coextensive with the substantive crime. Since many acts of desertion thus certainly fall far short of a \"refusal to perform this ultimate duty of American citizenship,\" it stretches the imagination excessively to establish a rational relation of mere retribution to the ends purported to be served by expatriation of the deserter. I simply cannot accept a judgment that Congress is free to adopt any measure at all to demonstrate its displeasure and exact its penalty from the offender against its laws. It seems to me that nothing is solved by the uncritical reference to service in the armed forces as the \"ultimate duty of American citizenship.\" Indeed, it is very difficult to imagine, on this theory of power, why Congress cannot impose expatriation as punishment for any crime at all\u2014for tax evasion, for bank robbery, for narcotics offenses. As citizens we are also called upon to pay our taxes and to obey the laws, and these duties appear to me to be fully as related to the nature of our citizenship as our military obligations. But Congress' asserted power to expatriate the deserter bears to the war powers precisely the same relation as its power to expatriate the tax evader would bear to the taxing power. *114 I therefore must conclude that \u00a7 401 (g) is beyond the power of Congress to enact. Admittedly Congress' belief that expatriation of the deserter might further the war effort may find some\u2014though necessarily slender\u2014support in reason. But here, any substantial achievement, by this device, of Congress' legitimate purposes under the war power seems fairly remote. It is at the same time abundantly clear that these ends could more fully be achieved by alternative methods not open to these objections. In the light of these factors, and conceding all that I possibly can in favor of the enactment, I can only conclude that the requisite rational relation between this statute and the war power does not appear\u2014for in this relation the statute is not \"really calculated to effect any of the objects entrusted to the government . . . ,\" M'Culloch v. Maryland, 4 Wheat. 316, 423\u2014and therefore that \u00a7 401 (g) falls beyond the domain of Congress. MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE HARLAN join, dissenting. Petitioner was born in Ohio in 1924. While in the Army serving in French Morocco in 1944, he was tried by a general court-martial and found guilty of having twice escaped from confinement, of having been absent without leave, and of having deserted and remained in desertion for one day. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for three years. He subsequently returned to the United States. In 1952 he applied for a passport; this application was denied by the State Department on the ground that petitioner had lost his citizenship as a result of his conviction of and dishonorable discharge for desertion from the Army in time of war. The Department relied upon \u00a7 401 of the *115 Nationality Act of 1940, 54 Stat. 1137, 1168, as amended by the Act of January 20, 1944, 58 Stat. 4, which provided, in pertinent part,[1] that \"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: ..... \"(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces: Provided, That notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this or previous Acts by reason of desertion committed in time of war, restoration to active duty with such military or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military or naval authority, prior or subsequent to the effective date of this Act, shall be deemed to have the immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or hereafter so lost and of removing all civil and political disabilities resulting therefrom . . . .\" In 1955 petitioner brought suit in a United States District Court for a judgment declaring him to be a national of the United States. The Government's motion for summary judgment was granted and petitioner's denied. *116 The Court of Appeals for the Second Circuit affirmed, one judge dissenting. 239 F. 2d 527. At the threshold the petitioner suggests constructions of the statute that would avoid consideration of constitutional issues. If such a construction is precluded, petitioner contends that Congress is without power to attach loss of citizenship as a consequence of conviction for desertion. He also argues that such an exercise of power would violate the Due Process Clause of the Fifth Amendment to the Constitution and the prohibition against cruel and unusual punishments in the Eighth Amendment. The subsection of \u00a7 401 of the Nationality Act of 1940, as amended, making loss of nationality result from a conviction for desertion in wartime is a direct descendant of a provision enacted during the Civil War. One section of \"An Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out [of] the National Forces, and for other Purposes,\" 13 Stat. 487, 490, approved on March 3, 1865, provided that \"in addition to the other lawful penalties of the crime of desertion from the military or naval service,\" all persons who desert such service \"shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens . . . .\" Except as limited in 1912 to desertion in time of war, 37 Stat. 356, the provision remained in effect until absorbed into the Nationality Act of 1940. 54 Stat. 1137, 1169, 1172. Shortly after its enactment the 1865 provision received an important interpretation in Huber v. Reily, 53 Pa. 112 (1866). There, the Supreme Court of Pennsylvania, in an opinion by Mr. Justice Strong, later of this Court, held that the disabilities of the 1865 Act could attach only after the individual had been convicted of desertion by a court-martial. The requirement was drawn from the Due Process Clause of the Fifth Amendment to the Constitution. 53 Pa., at 116-118. This interpretation was *117 followed by other courts, e. g., State v. Symonds, 57 Me. 148, and was referred to approvingly by this Court in 1885 in Kurtz v. Moffitt, 115 U. S. 487, without discussion of its rationale. When the nationality laws of the United States were revised and codified as the Nationality Act of 1940, 54 Stat. 1137, there was added to the list of acts that result in loss of American nationality, \"Deserting the military or naval service of the United States in time of war, provided he [the deserter] is convicted thereof by a court martial.\" \u00a7 401 (g), 54 Stat. 1169. During the consideration of the Act, there was substantially no debate on this provision. It seems clear, however, from the report of the Cabinet Committee that had recommended its adoption that nothing more was intended in its enactment than to incorporate the 1865 provision into the 1940 codification, at the same time making it clear that nationality, and not the ambiguous \"rights of citizenship,\"[2] was to be lost and that the provision applied to all nationals. Codification of the Nationality Laws of the United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st Sess. 68. In 1944, at the request of the War Department, Congress amended \u00a7 401 (g) of the 1940 Act into the form in which it was when applied to the petitioner; this amendment required that a dismissal or dishonorable discharge result from the conviction for desertion before expatriation should follow and provided that restoration of a deserter to active duty during wartime should have the effect of restoring his citizenship. 58 Stat. 4. It is abundantly clear from the debate and reports that the *118 sole purpose of this change was to permit persons convicted of desertion to regain their citizenship and continue serving in the armed forces, H. R. Rep. No. 302, 78th Cong., 1st Sess. 1; S. Rep. No. 382, 78th Cong., 1st Sess. 1; 89 Cong. Rec. 10135. Because it was thought unreasonable to require persons who were still in the service to fight and, perhaps, die for the country when they were no longer citizens, the requirement of dismissal or dishonorable discharge prior to denationalization was included in the amendment. See S. Rep. No. 382, supra, at 3; 89 Cong. Rec. 3241. Petitioner advances two possible constructions of \u00a7 401 (g) that would exclude him from its operation and avoid constitutional determinations. It is suggested that the provision applies only to desertion to the enemy and that the sentence of a dishonorable discharge, without the imposition of which a conviction for desertion does not have an expatriating effect, must have resulted from a conviction solely for desertion. There is no support for the first of these constructions in a fair reading of \u00a7 401 (g) or in its congressional history. Rigorously as we are admonished to avoid consideration of constitutional issues if statutory disposition is available, it would do violence to what this statute compellingly conveys to draw from it a meaning other than what it spontaneously reveals. Section 401 (g) imposes expatriation on an individual for desertion \"provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces . . . .\" Petitioner's argument is that the dishonorable discharge must be solely \"the result of such conviction\" and that \u00a7 401 (g) is therefore not applicable to him, convicted as he was of escape from confinement and absence without leave in addition to desertion. Since the invariable practice in military trials *119 is and has been that related offenses are tried together with but a single sentence to cover all convictions, see Jackson v. Taylor, 353 U. S. 569, 574, the effect of the suggested construction would be to force a break with the historic process of military law for which Congress has not in the remotest way given warrant. The obvious purpose of the 1944 amendment, requiring dishonorable discharge as a condition precedent to expatriation, was to correct the situation in which an individual who had been convicted of desertion, and who had thus lost his citizenship, was kept on duty to fight and sometimes die \"for his country which disowns him.\" Letter from Secretary of War to Chairman, Senate Military Affairs Committee, S. Rep. No. 382, 78th Cong., 1st Sess. 3. There is not a hint in the congressional history that the requirement of discharge was intended to make expatriation depend on the seriousness of the desertion, as measured by the sentence imposed. If we are to give effect to the purpose of Congress in making a conviction for wartime desertion result in loss of citizenship, we must hold that the dishonorable discharge, in order for expatriation to follow, need only be \"the result of\" conviction for one or more offenses among which one must be wartime desertion. Since none of petitioner's nonconstitutional grounds for reversal can be sustained, his claim of unconstitutionality must be faced. What is always basic when the power of Congress to enact legislation is challenged is the appropriate approach to judicial review of congressional legislation. All power is, in Madison's phrase, \"of an encroaching nature.\" Federalist, No. 48 (Earle ed. 1937), at 321. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint. When the power of Congress to pass a statute is challenged, the function *120 of this Court is to determine whether legislative action lies clearly outside the constitutional grant of power to which it has been, or may fairly be, referred. In making this determination, the Court sits in judgment on the action of a co-ordinate branch of the Government while keeping unto itself\u2014as it must under our constitutional system\u2014the final determination of its own power to act. No wonder such a function is deemed \"the gravest and most delicate duty that this Court is called on to perform.\" Holmes, J., in Blodgett v. Holden, 275 U. S. 142, 148 (separate opinion). This is not a lip-serving platitude. Rigorous observance of the difference between limits of power and wise exercise of power\u2014between questions of authority and questions of prudence\u2014requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do. One of the principal purposes in establishing the Constitution was to \"provide for the common defence.\" To that end the States granted to Congress the several powers of Article I, Section 8, clauses 11 to 14 and 18, compendiously described as the \"war power.\" Although these specific grants of power do not specifically enumerate every factor relevant to the power to conduct war, there is no limitation upon it (other than what the Due Process *121 Clause commands). The scope of the war power has been defined by Chief Justice Hughes in Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 426: \"[T]he war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation.\" See also Chief Justice Stone's opinion in Hirabayashi v. United States, 320 U. S. 81, 93. Probably the most important governmental action contemplated by the war power is the building up and maintenance of an armed force for the common defense. Just as Congress may be convinced of the necessity for conscription for the effective conduct of war, Selective Draft Law Cases, 245 U. S. 366, Congress may justifiably be of the view that stern measures\u2014what to some may seem overly stern\u2014are needed in order that control may be had over evasions of military duty when the armed forces are committed to the Nation's defense, and that the deleterious effects of those evasions may be kept to the minimum. Clearly Congress may deal severely with the problem of desertion from the armed forces in wartime; it is equally clear\u2014from the face of the legislation and from the circumstances in which it was passed\u2014that Congress was calling upon its war powers when it made such desertion an act of expatriation. Cf. Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 647. Possession by an American citizen of the rights and privileges that constitute citizenship imposes correlative obligations, of which the most indispensable may well be \"to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense,\" Jacobson v. Massachusetts, 197 U. S. 11, 29. Harsh as this may sound, it is no more so than the actualities to which it responds. Can it be said that there is no *122 rational nexus between refusal to perform this ultimate duty of American citizenship and legislative withdrawal of that citizenship? Congress may well have thought that making loss of citizenship a consequence of wartime desertion would affect the ability of the military authorities to control the forces with which they were expected to fight and win a major world conflict. It is not for us to deny that Congress might reasonably have believed the morale and fighting efficiency of our troops would be impaired if our soldiers knew that their fellows who had abandoned them in their time of greatest need were to remain in the communion of our citizens. Petitioner urges that imposing loss of citizenship as a \"punishment\" for wartime desertion is a violation of both the Due Process Clause of the Fifth Amendment and the Eighth Amendment. His objections are that there is no notice of expatriation as a consequence of desertion in the provision defining that offense, that loss of citizenship as a \"punishment\" is unconstitutionally disproportionate to the offense of desertion and that loss of citizenship constitutes \"cruel and unusual punishment.\" The provision of the Articles of War under which petitioner was convicted for desertion, Art. 58, Articles of War, 41 Stat. 787, 800, does not mention the fact that one convicted of that offense in wartime should suffer the loss of his citizenship. It may be that stating all of the consequences of conduct in the statutory provision making it an offense is a desideratum in the administration of criminal justice; that can scarcely be said\u2014nor does petitioner contend that it ever has been said\u2014to be a constitutional requirement. It is not for us to require Congress to list in one statutory section not only the ordinary penal consequences of engaging in activities therein prohibited but also the collateral disabilities that follow, by operation of law, from a conviction thereof duly resulting *123 from a proceeding conducted in accordance with all of the relevant constitutional safeguards.[3] Of course an individual should be apprised of the consequences of his actions. The Articles of War put petitioner on notice that desertion was an offense and that, when committed in wartime, it was punishable by death. Art. 58, supra. Expatriation automatically followed by command of the Nationality Act of 1940, a duly promulgated Act of Congress. The War Department appears to have made every effort to inform individual soldiers of the gravity of the consequences of desertion; its Circular No. 273 of 1942 pointed out that convictions for desertion were punishable by death and would result in \"forfeiture of the rights of citizenship,\" and it instructed unit commanders to \"explain carefully to all *124 personnel of their commands [certain Articles of War, including Art. 58] . . . and emphasize the serious consequences which may result from their violation.\" Compilation of War Department General Orders, Bulletins, and Circulars (Government Printing Office 1943) 343. That Congress must define in the rubric of the substantive crime all the consequences of conduct it has made a grave offense and that it cannot provide for a collateral consequence, stern as it may be, by explicit pronouncement in another place on the statute books is a claim that hardly rises to the dignity of a constitutional requirement. Petitioner contends that loss of citizenship is an unconstitutionally disproportionate \"punishment\" for desertion and that it constitutes \"cruel and unusual punishment\" within the scope of the Eighth Amendment. Loss of citizenship entails undoubtedly severe\u2014and in particular situations even tragic\u2014consequences. Divestment of citizenship by the Government has been characterized, in the context of denaturalization, as \"more serious than a taking of one's property, or the imposition of a fine or other penalty.\" Schneiderman v. United States, 320 U. S. 118, 122. However, like denaturalization, see Klapprott v. United States, 335 U. S. 601, 612, expatriation under the Nationality Act of 1940 is not \"punishment\" in any valid constitutional sense. Cf. Fong Yue Ting v. United States, 149 U. S. 698, 730. Simply because denationalization was attached by Congress as a consequence of conduct that it had elsewhere made unlawful, it does not follow that denationalization is a \"punishment,\" any more than it can be said that loss of civil rights as a result of conviction for a felony, see Gathings, Loss of Citizenship and Civil Rights for Conviction of Crime, 43 Am. Pol. Sci. Rev. 1228, 1233, is a \"punishment\" for any legally significant purposes. The process of denationalization, as devised by the expert Cabinet Committee on which Congress quite properly *125 and responsibly relied[4] and as established by Congress in the legislation before the Court,[5] was related to the authority of Congress, pursuant to its constitutional powers, to regulate conduct free from restrictions that pertain to legislation in the field technically described as criminal justice. Since there are legislative ends within the scope of Congress' war power that are wholly consistent with a \"non-penal\" purpose to regulate the military forces, and since there is nothing on the face of this legislation or in its history to indicate that Congress had a contrary purpose, there is no warrant for this Court's labeling the disability imposed by \u00a7 401 (g) as a \"punishment.\" Even assuming, arguendo, that \u00a7 401 (g) can be said to impose \"punishment,\" to insist that denationalization is \"cruel and unusual\" punishment is to stretch that concept beyond the breaking point. It seems scarcely arguable that loss of citizenship is within the Eighth Amendment's prohibition because disproportionate to an offense that is capital and has been so from the first year of Independence. Art. 58, supra; \u00a7 6, Art. 1, Articles of War of 1776, 5 J. Cont. Cong. (Ford ed. 1906) 792. Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death? The seriousness of abandoning one's country when it is in the grip of mortal conflict precludes denial *126 to Congress of the power to terminate citizenship here, unless that power is to be denied to Congress under any circumstance. Many civilized nations impose loss of citizenship for indulgence in designated prohibited activities. See, generally, Laws Concerning Nationality, U. N. Doc. No. ST\/LEG\/SER.B\/4 (1954). Although these provisions are often, but not always, applicable only to naturalized citizens, they are more nearly comparable to our expatriation law than to our denaturalization law.[6] Some countries have made wartime desertion result in loss of citizenship\u2014native-born or naturalized. E. g., \u00a7 1 (6), Philippine Commonwealth Act No. 63 of Oct. 21, 1936, as amended by Republic Act No. 106 of June 2, 1947, U. N. Doc., supra, at 379; see Borchard, Diplomatic Protection of Citizens Abroad, 730. In this country, desertion has been punishable by loss of at least the \"rights of citizenship\"[7] since 1865. The Court today reaffirms its decisions (Mackenzie v. Hare, 239 U. S. 299; Savorgnan v. United States, 338 U. S. 491) sustaining the power of Congress to denationalize citizens who had no desire or intention to give up their citizenship. If loss of citizenship may constitutionally be made the consequence of such conduct as marrying a foreigner, and thus certainly not \"cruel and unusual,\" it seems more than incongruous that such loss should be thought \"cruel and unusual\" when it is the consequence of conduct that is also a crime. In short, denationalization, when attached to the offense *127 of wartime desertion, cannot justifiably be deemed so at variance with enlightened concepts of \"humane justice,\" see Weems v. United States, 217 U. S. 349, 378, as to be beyond the power of Congress, because constituting a \"cruel and unusual\" punishment within the meaning of the Eighth Amendment. Nor has Congress fallen afoul of that prohibition because a person's post-denationalization status has elements of unpredictability. Presumably a denationalized person becomes an alien vis-a-vis the United States. The very substantial rights and privileges that the alien in this country enjoys under the federal and state constitutions puts him in a very different condition from that of an outlaw in fifteenth-century England. He need not be in constant fear lest some dire and unforeseen fate be imposed on him by arbitrary governmental action\u2014 certainly not \"while this Court sits\" (Holmes, J., dissenting in Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223). The multitudinous decisions of this Court protective of the rights of aliens bear weighty testimony. And the assumption that brutal treatment is the inevitable lot of denationalized persons found in other countries is a slender basis on which to strike down an Act of Congress otherwise amply sustainable. It misguides popular understanding of the judicial function and of the limited power of this Court in our democracy to suggest that by not invalidating an Act of Congress we would endanger the necessary subordination of the military to civil authority. This case, no doubt, derives from the consequence of a court-martial. But we are sitting in judgment not on the military but on Congress. The military merely carried out a responsibility with which they were charged by Congress. Should the armed forces have ceased discharging wartime deserters because Congress attached the consequence it did to their performance of that responsibility? *128 This legislation is the result of an exercise by Congress of the legislative power vested in it by the Constitution and of an exercise by the President of his constitutional power in approving a bill and thereby making it \"a law.\" To sustain it is to respect the actions of the two branches of our Government directly responsive to the will of the people and empowered under the Constitution to determine the wisdom of legislation. The awesome power of this Court to invalidate such legislation, because in practice it is bounded only by our own prudence in discerning the limits of the Court's constitutional function, must be exercised with the utmost restraint. Mr. Justice Holmes, one of the profoundest thinkers who ever sat on this Court, expressed the conviction that \"I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.\" Holmes, Speeches, 102. He did not, of course, deny that the power existed to strike down congressional legislation, nor did he shrink from its exercise. But the whole of his work during his thirty years of service on this Court should be a constant reminder that the power to invalidate legislation must not be exercised as if, either in constitutional theory or in the art of government, it stood as the sole bulwark against unwisdom or excesses of the moment. NOTES [1] 54 Stat. 1168, 1169, as amended, 58 Stat. 4, 8 U. S. C. \u00a7 1481 (a) (8): \"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: ..... \"(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces: Provided. That notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this or previous Acts by reason of desertion committed in time of war, restoration to active duty with such military or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military or naval authority, prior or subsequent to the effective date of this Act, shall be deemed to have the immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or hereafter so lost and of removing all civil and political disabilities resulting therefrom . . . .\" [2] Act of March 3, 1865, 13 Stat. 487, 490. [3] See Roche, The Loss of American Nationality\u2014The Development of Statutory Expatriation, 99 U. of Pa. L. Rev. 25, 60-62. Administratively the phrase \"rights of citizenship\" was apparently taken to mean \"citizenship.\" See Foreign Relations 1873, H. R. Exec. Doc. No. 1, 43d Cong., 1st Sess., Pt. 1, Vol. II, p. 1187 (view of Secretary of State Fish); H. R. Doc. No. 326, 59th Cong., 2d Sess. 159 (State Department Board); Hearings, before the House Committee on Immigration and Naturalization on H. R. 6127, 76th Cong., 1st Sess. 132-133 (testimony of Richard Flournoy, State Department representative). [4] Hearings, at 133.\nBut it is not entirely clear, however, that the Congress fully appreciated the fact that Section 401 (g) rendered a convicted deserter stateless. In this regard, the following colloquy, which occurred during hearings in 1943 before the House Committee on Immigration and Naturalization between Congressmen Allen and Kearney, members of the Committee, and Edward J. Shaughnessy, then Deputy Commissioner of Immigration, is illuminating: \"Mr. ALLEN. If he is convicted [of desertion] by court martial in time of war, he loses his citizenship? \"Mr. SHAUGHNESSY. That is correct. \"Mr. ALLEN. In other words, that is the same thing as in our civil courts. When one is convicted of a felony and is sent to the penitentiary, one loses his citizenship. \"Mr. SHAUGHNESSY. He loses his rights of citizenship. \"Mr. KEARNEY. There is a difference between losing citizenship and losing civil rights. \"Mr. SHAUGHNESSY. He loses his civil rights, not his citizenship. Here he loses his citizenship. \"Mr. ALLEN. He loses his rights derived from citizenship. \"Mr. SHAUGHNESSY. Yes; it almost amounts to the same thing. It is a technical difference. \"Mr. ALLEN. He is still an American citizen, but he has no rights. \"Mr. SHAUGHNESSY. No rights of citizenship.\" Hearings before the House Committee on Immigration and Naturalization on H. R. 2207, 78th Cong., 1st Sess. 2-3. See also id., at 7: \"Mr. ELMER. Is it not true that this loss of citizenship for desertion is a State matter and that the Government has nothing to do with it?\" [5] Act of January 20, 1944, 58 Stat. 4. [6] See S. Rep. No. 382, 78th Cong., 1st Sess. 1, 3; H. R. Rep. No. 302, 78th Cong., 1st Sess. 1; 89 Cong. Rec. 3241, 10135. [7] Articles of War 58, 41 Stat. 800; Article 85, Uniform Code of Military Justice, 10 U. S. C. (Supp. V) \u00a7 885; Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 637. [8] The Solicitor General stated in his argument that \u00a7 401 (g) would apply to desertion from such camps. [9] United States ex rel. Toth v. Quarles, 350 U. S. 11; Reid v. Covert, 354 U. S. 1; Harmon v. Brucker, 355 U. S. 579. [10] 54 Stat. 1168, as amended, 58 Stat. 746, 8 U. S. C. \u00a7 1481 (a) (10): \"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: ..... \"(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.\" [11] Codification of the Nationality Laws of the United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st Sess. 68. [12] Ibid. [13] Act of March 3, 1865, 13 Stat. 487. [14] S. Rep. No. 2150, 76th Cong., 3d Sess. 3. [15] United States v. Constantine, 296 U. S. 287, 294; United States v. La Franca, 282 U. S. 568, 572. [16] U. S. Const., Art. I, \u00a7 9, cl. 3; \u00a7 10, cl. 1. [17] United States v. Lovett, 328 U. S. 303; Calder v. Bull, 3 Dall. 386. [18] Of course, the severity of the disability imposed as well as all the circumstances surrounding the legislative enactment is relevant to this decision. See, generally, Wormuth, Legislative Disqualifications as Bills of Attainder, 4 Vand. L. Rev. 603, 608-610: 64 Yale L. J. 712, 722-724. [19] E. g., United States v. Lovett, supra; Pierce v. Carskadon, 16 Wall. 234; Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277. [20] E. g., Mahler v. Eby, 264 U. S. 32; Hawker v. New York, 170 U. S. 189; Davis v. Beason, 133 U. S. 333; Murphy v. Ramsey, 114 U. S. 15. [21] See Gathings, Loss of Citizenship and Civil Rights for Conviction of Crime, 43 Am. Pol. Sci. Rev. 1228. [22] Cf. Davis v. Beason, supra; Murphy v. Ramsey, supra. [23] See War Department Circular No. 273, 1942, Compilation of War Department General Orders, Bulletins and Circulars (Government Printing Office 1943) 343. [24] Mahler v. Eby, supra; Bugajewitz v. Adams, 228 U. S. 585; Fong Yue Ting v. United States, 149 U. S. 698. [25] Act of May 10, 1920, 41 Stat. 593. [26] Act of June 15, 1917, 40 Stat. 217. [27] See, e. g., Baumgartner v. United States, 322 U. S. 665; Schneiderman v. United States, 320 U. S. 118. [28] U. S. Const., Amend. VIII: \"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.\" [29] See Louisiana ex rel. Francis v. Resweber, 329 U. S. 459; Weems v. United States, 217 U. S. 349; Howard v. Fleming, 191 U. S. 126; O'Neil v. Vermont, 144 U. S. 323; In re Kemmler, 136 U. S. 436; Wilkerson v. Utah, 99 U. S. 130. [30] 1 Wm. & Mary, 2d Sess. (1689), c. 2. [31] See 34 Minn. L. Rev. 134; 4 Vand. L. Rev. 680. [32] Whether the word \"unusual\" has any qualitative meaning different from \"cruel\" is not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. See Weems v. United States, supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. These cases indicate that the Court simply examines the particular punishment involved in light of the basic prohibition against inhuman treatment, without regard to any subtleties of meaning that might be latent in the word \"unusual.\" But cf. In re Kemmler, supra, at 443; United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407, 430 (Brandeis, J., dissenting). If the word \"unusual\" is to have any meaning apart from the word \"cruel,\" however, the meaning should be the ordinary one, signifying something different from that which is generally done. Denationalization as a punishment certainly meets this test. It was never explicitly sanctioned by this Government until 1940 and never tested against the Constitution until this day. [33] \"Plaintiff-appellant has cited to us and obviously relied on the masterful analysis of expatriation legislation set forth in the Comment, The Expatriation Act of 1954, 64 Yale L. J. 1164, 1189-1199. I agree with the author's documented conclusions therein that punitive expatriation of persons with no other nationality constitutes cruel and unusual punishment and is invalid as such. Since I doubt if I can add to the persuasive arguments there made, I shall merely incorporate by reference. In my faith, the American concept of man's dignity does not comport with making even those we would punish completely `stateless'\u2014fair game for the despoiler at home and the oppressor abroad, if indeed there is any place which will tolerate them at all.\" 239 F. 2d 527, 530. [34] See discussion in Perez v. Brownell, ante, p. 44, at 64. [35] See Study on Statelessness, U. N. Doc. No. E\/1112; Seckler-Hudson, Statelessness: With Special Reference to the United States; Borchard, Diplomatic Protection of Citizens Abroad, \u00a7\u00a7 262, 334. [36] The suggestion that judicial relief will be available to alleviate the potential rigors of statelessness assumes too much. Undermining such assumption is the still fresh memory of Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, where an alien, resident in this country for 25 years, returned from a visit abroad to find himself barred from this country and from all others to which he turned. Summary imprisonment on Ellis Island was his fate, without any judicial examination of the grounds of his confinement. This Court denied relief, and the intolerable situation was remedied after four years' imprisonment only through executive action as a matter of grace. See N. Y. Times, Aug. 12, 1954, p. 10, col. 4. [37] See Laws Concerning Nationality, U. N. Doc. No. ST\/LEG\/ SER.B\/4 (1954). [38] Id., at 379 and 461. Cf. Nationality Law of August 22, 1907, Art. 17 (2) (Haiti), id., at 208. [1] Some indication of the problem is to be seen in the joint resolutions introduced in both houses of Congress to exempt the two or three thousand Americans who allegedly lost their citizenship by voting in certain Italian elections. See S. J. Res. 47 and H. J. Res. 30, 239, 375, 81st Cong., 1st Sess. All proposed \"to suspend the operation of section 401 (e) of the Nationality Act of 1940 in certain cases.\" See also H. R. 6400, 81st Cong., 1st Sess. [2] Perez v. Brownell did not raise questions under the First Amendment, which of course would have the effect in appropriate cases of limiting congressional power otherwise possessed. [3] A good description of the extent of the problem raised by desertions from the Union armies, and of the extreme measures taken to combat the problem, will be found in Pullen, The Twentieth Maine: A volunteer Regiment of the Civil War (1957). [4] The opinion in Huber v. Reily, which was written by Mr. Justice Strong, later a member of this Court, suggested, if it did not hold, that the statutes and considerations of due process required that expatriation, to be accomplished, should be specifically included by the court-martial as part of the sentence. See 53 Pa., at 119-120. The court-martial, under military law, adjudges both guilt and the extent of initial sentence. Jackson v. Taylor, 353 U. S. 569, 574-575; and see Article of War 58 (1920), 41 Stat. 800. However, it has not been the practice specifically to include expatriation as part of the sentence. 2 Winthrop, Military Law and Precedents (2d ed. 1896), 1001. [5] The provision was limited in 1912 to desertion in time of war, 37 Stat. 356, but otherwise was not revised until carried into the Nationality Act of 1940, 54 Stat. 1169. It was, however, first codified as part of the laws concerning citizenship as \u00a7 1998 of the 1874 Revised Statutes. [6] The reason for the addition of the proviso is stated in a report, Codification of the Nationality Laws of the United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st Sess., prepared at the request of the President by the Secretary of State, the Attorney General, and the Secretary of Labor, proposing a revision and codification of the nationality laws: \"The provisions of sections 1996 and 1998 of the Revised Statutes are distinctly penal in character. They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial (Huber v. Reilly, 1866, 53 Penn. St. 112; Kurtz v. Moffitt, 1885, 115 U. S. 487).\" Id., at 68.\nThe reference later in the report that \u00a7 401 \"technically is not a penal law\" is to the section as a whole and not to subdivision (g). [7] Adjudication of hypothetical and contingent consequences is beyond the function of this Court and the incidents of expatriation are altogether indefinite. Nonetheless, this very uncertainty of the consequences makes expatriation as punishment severe.\nIt is also unnecessary to consider whether the consequences would be different for the citizen expatriated under another section than \u00a7 401 (g). [8] A deterrent effect is certainly conjectural when we are told that during World War II as many as 21,000 soldiers were convicted of desertion and sentenced to be dishonorably discharged. From the fact that the reviewing authorities ultimately remitted the dishonorable discharges in about two-thirds of these cases it is possible to infer that the military itself had no firm belief in the deterrent effects of expatriation. [1] The substance of this provision now appears in \u00a7 349 (a) (8) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 268, 8 U. S. C. \u00a7 1481 (a) (8). [2] The precise meaning of this phrase has never been clear, see Roche, The Loss of American Nationality\u2014The Development of Statutory Expatriation, 99 U. of Pa. L. Rev. 25, 61-62. It appears, however, that the State Department regarded it to mean loss of citizenship, see, e. g., Hearings before the House Committee on Immigration and Naturalization on H. R. 6127, 76th Cong., 1st Sess. 38. [3] It should be noted that a person cannot be deprived of his citizenship merely on the basis of an administrative finding that he deserted in wartime or even with finality on the sole basis of his having been dishonorably discharged as a result of a conviction for wartime desertion. Section 503 of the Nationality Act of 1940 provides: \"If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. . . .\" 54 Stat. 1137, 1171, now \u00a7 360 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 273, 8 U. S. C. \u00a7 1503. In such a proceeding it is open to a person who, like petitioner, is alleged to have been expatriated under \u00a7 401 (g) of the 1940 Act to show, for example, that the court-martial was without jurisdiction (including observance of the requirements of due process) or that the individual, by his restoration to active duty after conviction and discharge, regained his citizenship under the terms of the proviso in \u00a7 401 (g), supra. [4] The report of that Committee stated that the provision in question \"technically is not a penal law.\" Codification of the Nationality Laws of the United States, supra, at 68. In their letter to the President covering the report, the Committee stated that none of the loss of nationality provisions was \"designed to be punitive . . . .\" Id., at VII. [5] There is no basis for finding that the Congress that enacted this provision regarded it otherwise than as part of the clearly nonpenal scheme of \"acts of expatriation\" represented by \u00a7 401 of the Nationality Act of 1940, supra. [6] In the United States, denaturalization is based exclusively on the theory that the individual obtained his citizenship by fraud, see Luria v. United States, 231 U. S. 9, 24; the laws of many countries making naturalized citizens subject to expatriation for grounds not applicable to natural-born citizens do not relate those grounds to the actual naturalization process. E. g., British Nationality Act, 1948, 11 & 12 Geo. VI, c. 56, \u00a7 20 (3). 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{"text":"415 U.S. 724 (1974) STORER ET AL. v. BROWN, SECRETARY OF STATE OF CALIFORNIA, ET AL. No. 72-812. Supreme Court of United States. Argued November 5, 1973. Decided March 26, 1974.[*] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA. *726 Paul N. Halvonik and Joseph Remcho argued the cause for appellants in both cases. With them on the brief for appellants in No. 72-812 was Charles C. Marson. Appellant pro se filed a brief in No. 72-6050. Clayton P. Roche, Deputy Attorney General of California, argued the cause for appellee Brown in both cases. With him on the brief were Evelle J. Younger, Attorney General, and Iver E. Skjeie, Assistant Attorney General.[\u2020] MR. JUSTICE WHITE delivered the opinion of the Court. The California Elections Code forbids ballot position to an independent candidate for elective public office if he voted in the immediately preceding primary, \u00a7 6830 (c) (Supp. 1974),[1] or if he had a registered affiliation with a qualified political party at any time within one year prior to the immediately preceding primary election. \u00a7 6830 (d) (Supp. 1974). The independent candidate must also file nomination papers signed by voters not less *727 in number than 5% nor more than 6% of the entire vote cast in the preceding general election in the area for which the candidate seeks to run. \u00a7 6831 (1961). All of these signatures must be obtained during a 24-day period following the primary and ending 60 days prior to the general election, \u00a7 6833 (Supp. 1974), and none of the signatures may be gathered from persons who vote at the primary election. \u00a7 6830 (c) (Supp. 1974). The constitutionality of these provisions is challenged here as infringing on rights guaranteed by the First and Fourteenth Amendments and as adding qualifications for the office of United States Congressman, contrary to Art. I, \u00a7 2, cl. 2, of the Constitution. Prior to the 1972 elections, appellants Storer, Frommhagen, Hall, and Tyner, along with certain of their supporters, filed their actions[2] to have the above sections of the Elections Code declared unconstitutional and their enforcement enjoined. Storer and Frommhagen each sought ballot status as an independent candidate for Congressman from his district.[3] Both complained about the party disaffiliation requirement of \u00a7 6830 (d) (Supp. 1974) and asserted that the combined effects of the provisions were unconstitutional burdens on their First and Fourteenth Amendment rights. Hall and Tyner claimed the right to ballot position as independent candidates for President and Vice President of the United States. They *728 were members of the Communist Party but that party had not qualified for ballot position in California. They, too, complained of the combined effect of the indicated sections of the Elections Code on their ability to achieve ballot position. A three-judge District Court concluded that the statutes served a sufficiently important state interest to sustain their constitutionality and dismissed the complaints. Two separate appeals were taken from the judgment. We noted probable jurisdiction and consolidated the cases for oral argument. 410 U.S. 965 (1973).\nI We affirm the judgment of the District Court insofar as it refused relief to Storer and Frommhagen with respect to the 1972 general election. Both men were registered Democrats until early in 1972, Storer until January and Frommhagen until March of that year. This affiliation with a qualified political party within a year prior to the 1972 primary disqualified both men under \u00a7 6830 (d) (Supp. 1974); and in our view the State of California was not prohibited by the United States Constitution from enforcing that provision against these men. In Williams v. Rhodes, 393 U.S. 23 (1968), the Court held that although the citizens of a State are free to associate with one of the two major political parties, to participate in the nomination of their chosen party's candidates for public office and then to cast their ballots in the general election, the State must also provide feasible means for other political parties and other candidates to appear on the general election ballot. The Ohio law under examination in that case made no provision for independent candidates and the requirements for any but the two major parties qualifying for the ballot were so burdensome that it was \"virtually impossible\" for other parties, new or old, to achieve ballot position for their candidates. *729 Id., at 25. Because these restrictions, which were challenged under the Equal Protection Clause, severely burdened the right to associate for political purposes and the right to vote effectively, the Court, borrowing from other cases, ruled that the discriminations against new parties and their candidates had to be justified by compelling state interests. The Court recognized the substantial state interest in encouraging compromise and political stability, in attempting to ensure that the election winner will represent a majority of the community and in providing the electorate with an understandable ballot and inferred that \"reasonable requirements for ballot position,\" id., at 32, would be acceptable. But these important interests were deemed insufficient to warrant burdens so severe as to confer an effective political monopoly on the two major parties. The First and Fourteenth Amendments, including the Equal Protection Clause of the latter, required as much. In challenging \u00a7 6830 (d) (Supp. 1974), appellants rely on Williams v. Rhodes and assert that under that case and subsequent cases dealing with exclusionary voting and candidate qualifications, e. g., Dunn v. Blumstein, 405 U.S. 330 (1972); Bullock v. Carter, 405 U.S. 134 (1972); Kramer v. Union Free School District, 395 U.S. 621 (1969), substantial burdens on the right to vote or to associate for political purposes are constitutionally suspect and invalid under the First and Fourteenth Amendments and under the Equal Protection Clause unless essential to serve a compelling state interest. These cases, however, do not necessarily condemn \u00a7 6830 (d) (Supp. 1974). It has never been suggested that the Williams-Kramer-Dunn rule automatically invalidates every substantial restriction on the right to vote or to associate. Nor could this be the case under our Constitution where the States are given the initial task of determining the *730 qualifications of voters who will elect members of Congress. Art. I, \u00a7 2, cl. 1. Also Art. I, \u00a7 4, cl. 1, authorizes the States to prescribe \"[t]he Times. Places and Manner of holding Elections for Senators and Representatives.\" Moreover, as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes. In any event, the States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections, the registration and qualifications of voters, and the selection and qualification of candidates. It is very unlikely that all or even a large portion of the state election laws would fail to pass muster under our cases; and the rule fashioned by the Court to pass on constitutional challenges to specific provisions of election laws provides no litmus-paper test for separating those restrictions that are valid from those that are invidious under the Equal Protection Clause. The rule is not self-executing and is no substitute for the hard judgments that must be made. Decision in this context, as in others, is very much a \"matter of degree,\" Dunn v. Blumstein, supra, at 348, very much a matter of \"consider[ing] the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.\" Williams v. Rhodes, supra, at 30; Dunn v. Blumstein, supra, at 335. What the result of this process will be in any specific case may be very difficult to predict with great assurance. The judgment in Dunn v. Blumstein invalidated the Tennessee one-year residence requirement for voting but agreed that the State's interest was obviously sufficient *731 to limit voting to residents, to require registration for voting, and to close the registration books at some point prior to the election, a deadline which every resident must meet if he is to cast his vote at the polls. Subsequently, three-judge district courts differed over the validity of a requirement that voters be registered for 50 days prior to election. This Court, although divided, sustained the provision. Burns v. Fortson, 410 U.S. 686 (1973); Marston v. Lewis, 410 U.S. 679 (1973). Rosario v. Rockefeller, 410 U.S. 752 (1973), is more relevant to the problem before us. That case dealt with a provision that to vote in a party primary the voter must have registered as a party member 30 days prior to the previous general election, a date eight months prior to the presidential primary and 11 months prior to the nonpresidential primary. Those failing to meet this deadline, with some exceptions, were barred from voting at either primary. We sustained the provision as \"in no sense invidious or arbitrary,\" because it was \"tied to [the] particularized legitimate purpose,\" id., at 762, of preventing interparty raiding, a matter which bore on \"the integrity of the electoral process.\" Id., at 761. Later the Court struck down similar Illinois provisions aimed at the same evil, where the deadline for changing party registration was 23 months prior to the primary date. Kusper v. Pontikes, 414 U.S. 51 (1973). One consequence was that a voter wishing to change parties could not vote in any primary that occurred during the waiting period. The Court did not retreat from Rosario or question the recognition in that case of the States' strong interest in maintaining the integrity of the political process by preventing interparty raiding. Although the 11-month requirement imposed in New York had been accepted as necessary for an effective remedy, the Court was unconvinced that the 23-month period established *732 in Illinois was an essential instrument to counter the evil at which it was aimed. Other variables must be considered where qualifications for candidates rather than for voters are at issue. In Jenness v. Fortson, 403 U.S. 431 (1971), we upheld a requirement that independent candidates must demonstrate substantial support in the community by securing supporting signatures amounting to 5% of the total registered voters in the last election for filling the office sought by the candidate. The Court said: \"There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot\u2014 the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.\" Id., at 442. Subsequently, in Bullock v. Carter, 405 U. S., at 145, a unanimous Court said: \"The Court has recognized that a State has a legitimate interest in regulating the number of candidates on the ballot. Jenness v. Fortson, 403 U. S., at 442; Williams v. Rhodes, 393 U. S., at 32. In so doing, the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections. Although we have no way of gauging the number of candidates who might enter primaries in Texas if access to the ballot were unimpeded by the large filing fees in question here, we are bound to respect the legitimate objectives of the State in avoiding overcrowded ballots. *733 Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies. Jenness v. Fortson, 403 U. S., at 442.\" Against this pattern of decisions we have no hesitation in sustaining \u00a7 6830 (d) (Supp. 1974). In California, the independent candidacy route to obtaining ballot position is but a part of the candidate-nominating process, an alternative to being nominated in one of the direct party primaries. The independent candidate need not stand for primary election but must qualify for the ballot by demonstrating substantial public support in another way. Otherwise, the qualifications required of the independent candidate are very similar to, or identical with, those imposed on party candidates. Section 6401 (Supp. 1974) imposes a flat disqualification upon any candidate seeking to run in a party primary if he has been \"registered as affiliated with a political party other than that political party the nomination of which he seeks within 12 months immediately prior to the filing of the declaration.\" Moreover, \u00a7\u00a7 6402 and 6611 provide that a candidate who has been defeated in a party primary may not be nominated as an independent or be a candidate of any other party; and no person may file nomination papers for a party nomination and an independent nomination for the same office, or for more than one office at the same election. The requirement that the independent candidate not have been affiliated with a political party for a year before the primary is expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot. It involves no discrimination against independents. Indeed, the independent candidate must be clear of political party affiliations for a year before the primary; the party candidate must not have been registered with another party for a year before he files *734 his declaration, which must be done not less than 83 and not more than 113 days prior to the primary. \u00a7 6490 (Supp. 1974). In Rosario v. Rockefeller, there was an 11-month waiting period for voters who wanted to change parties. Here, a person terminating his affiliation with a political party must wait at least 12 months before he can become a candidate in another party's primary or an independent candidate for public office. The State's interests recognized in Rosario are very similar to those that undergird the California waiting period; and the extent of the restriction is not significantly different. It is true that a California candidate who desires to run for office as an independent must anticipate his candidacy substantially in advance of his election campaign, but the required foresight is little more than the possible 11 months examined in Rosario, and its direct impact is on the candidate, and not voters. In any event, neither Storer nor Frommhagen is in position to complain that the waiting period is one year, for each of them was affiliated with a qualified party no more than six months prior to the primary. As applied to them, \u00a7 6830 (d) (Supp. 1974) is valid. After long experience, California came to the direct party primary as a desirable way of nominating candidates for public office. It has also carefully determined which public offices will be subject to partisan primaries and those that call for nonpartisan elections.[4] Moreover, after long experience with permitting candidates to run in the primaries of more than one party, California forbade the cross-filing practice in 1959.[5] A candidate in *735 one party primary may not now run in that of another; if he loses in the primary, he may not run as an independent; and he must not have been associated with another political party for a year prior to the primary. See \u00a7\u00a7 6401, 6611. The direct party primary in California is not merely an exercise or warm-up for the general election but an integral part of the entire election process,[6] the initial stage in a two-stage process by which the people choose their public officers. It functions to winnow out and finally reject all but the chosen candidates. The State's general policy is to have contending forces within the party employ the primary campaign and primary election to finally settle their differences. The general election ballot is reserved for major struggles; it is not a forum for continuing intraparty feuds. The provision against defeated primary candidates running as independents effectuates this aim, the visible result being to prevent the losers from continuing the struggle and to limit the names on the ballot to those who have won the primaries and those independents who have properly qualified. The people, it is hoped, are presented with understandable choices and the winner in the general election with sufficient support to govern effectively. Section 6830 (d) (Supp. 1974) carries very similar credentials. It protects the direct primary process by refusing to recognize independent candidates who do not make early plans to leave a party and take the alternative course to the ballot. It works against independent candidacies prompted by short-range political goals, pique, or personal quarrel. It is also a substantial barrier to a party fielding an \"independent\" candidate to capture and bleed off votes in the general election that might well go to another party. *736 A State need not take the course California has, but California apparently believes with the Founding Fathers that splintered parties and unrestrained factionalism may do significant damage to the fabric of government. See The Federalist, No. 10 (Madison). It appears obvious to us that the one-year disaffiliation provision furthers the State's interest in the stability of its political system. We also consider that interest as not only permissible, but compelling and as outweighing the interest the candidate and his supporters may have in making a late rather than an early decision to seek independent ballot status. Nor do we have reason for concluding that the device California chose, \u00a7 6830 (d) (Supp. 1974), was not an essential part of its overall mechanism to achieve its acceptable goals. As we indicated in Rosario, the Constitution does not require the State to choose ineffectual means to achieve its aims. To conclude otherwise might sacrifice the political stability of the system of the State, with profound consequences for the entire citizenry, merely in the interest of particular candidates and their supporters having instantaneous access to the ballot. We conclude that \u00a7 6830 (d) (Supp. 1974) is not unconstitutional, and Storer and Frommhagen were properly barred from the ballot as a result of its application.[7] Cf. Lippitt v. Cipollone, 404 U.S. 1032 (1972). Having reached this result, there is no need to examine the constitutionality of the other provisions of the Elections Code as they operate singly or in combination as applied to these candidates. Even if these statutes were wholly or partly unconstitutional. Storer and Frommhagen were still properly barred from having their names placed on *737 the 1972 ballot. Although Williams v. Rhodes, 393 U. S., at 34, spoke in terms of assessing the \"totality\" of the election laws as they affected constitutional rights, if a candidate is absolutely and validly barred from the ballot by one provision of the laws, he cannot challenge other provisions as applied to other candidates. The concept of \"totality\" is applicable only in the sense that a number of facially valid provisions of election laws may operate in tandem to produce impermissible barriers to constitutional rights. The disaffiliation requirement does not change its character when combined with other provisions of the electoral code. It is an absolute bar to candidacy, and a valid one. The District Court need not have heard a challenge to these other provisions of the California Elections Code by one who did not satisfy the age requirement for becoming a member of Congress, and there was no more reason to consider them at the request of Storer and Frommhagen or at the request of voters who desire to support unqualified candidates.[8] *738 II We come to different conclusions with respect to Hall and Tyner.[9] As to these two men we vacate the judgment of the District Court and remand the case for further proceedings to determine whether the California election laws place an unconstitutional burden on their access to the ballot. We start with the proposition that the requirements for an independent's attaining a place on the general election ballot can be unconstitutionally severe. Williams v. Rhodes, supra. We must, therefore, inquire as to the nature, extent, and likely impact of the California requirements. Beyond the one-year party disaffiliation condition and the rule against voting in the primary, both of which Hall apparently satisfied, it was necessary for an independent candidate to file a petition signed by voters not less in number than 5% of the total votes cast in California at the last general election. This percentage, as such, does not appear to be excessive, see Jenness v. Fortson, supra, but to assess realistically whether the law imposes excessively burdensome requirements upon independent candidates it is necessary to know other critical facts which do not appear from the evidentiary record in this case. *739 It is necessary in the first instance to know the \"entire vote\" in the last general election. Appellees suggest that 5% of that figure, whatever that is, is 325,000. Assuming this to be the correct total signature requirement, we also know that it must be satisfied within a period of 24 days between the primary and the general election. But we do not know the number of qualified voters from which the requirement must be satisfied within this period of time. California law disqualifies from signing the independent's petition all registered voters who voted in the primary. In theory, it could be that voting in the primary was so close to 100% of those registered, and new registrations since closing the books before primary day were so low, that eligible signers of an unaffiliated candidate's petition would number less than the total signatures required. This is unlikely, for it is usual that a substantial percentage of those eligible do not vote in the primary, and there were undoubtedly millions of voters qualified to vote in the 1972 primary. But it is not at all unlikely that the available pool of possible signers, after eliminating the total primary vote, will be substantially smaller than the total vote in the last general election and that it will require substantially more than 5% of the eligible pool to produce the necessary 325,000 signatures. This would be in excess, percentagewise, of anything the Court has approved to date as a precondition to an independent's securing a place on the ballot and in excess of the 5% which we said in Jenness was higher than the requirement imposed by most state election codes.[10] *740 We are quite sure, therefore, that further proceedings should be had in the District Court to permit further findings with respect to the extent of the burden imposed on independent candidates for President and Vice President under California law. Standing alone, gathering 325,000 signatures in 24 days would not appear to be an impossible burden. Signatures at the rate of 13,542 per day would be required, but 1,000 canvassers could perform the task if each gathered 14 signers a day. On its face, the statute would not appear to require an impractical undertaking for one who desires to be a candidate for President. But it is a substantial requirement; and if the additional likelihood is, as it seems to us to be, that the total signatures required will amount to a substantially higher percentage of the available pool than the 5% stipulated in the statute, the constitutional claim asserted by Hall is not frivolous. Before the claim is finally dismissed, it should be determined whether the available pool is so diminished in size by the disqualification of those who voted in the primary that the 325,000-signature requirement, to be satisfied in 24 days, is too great a burden on the independent candidates for the offices of President and Vice President. Because further proceedings are required, we must resolve certain issues that are in dispute in order that the ground rules for the additional factfinding in the District Court will more clearly appear. First, we have no doubt about the validity of disqualifying from signing an independent candidate's petition all those registered voters who voted a partisan ballot in the primary, although they did not vote for the office sought by the *741 independent. We have considered this matter at greater length in American Party of Texas v. White, see post, at 785-786, and we merely repeat here that a State may confine each voter to one vote in one primary election, and that to maintain the integrity of the nominating process the State is warranted in limiting the voter to participating in but one of the two alternative procedures, the partisan or the nonpartisan, for nominating candidates for the general election ballot. Second, the District Court apparently had little doubt that the California law disqualified anyone voting in the primary election, whether or not he confined his vote to nonpartisan offices and propositions.[11] The State of California asserts this to be an erroneous interpretation of California law and claims that the District Court should have abstained to permit the California courts to address the question. In any event, the State does not attempt to justify disqualifying as signers of an independent's petition those who voted only a non-partisan ballot at the primary, such as independent voters who themselves were disqualified from voting a partisan ballot. See \u00a7 311 (Supp. 1974). With what we have before us, it would be difficult to ascertain any rational ground, let alone a compelling interest, for disqualifying nonpartisan voters at the primary from signing an independent candidate's petition, and we think the District Court should reconsider the matter in the light of tentative views expressed here. Under the controlling cases, the District Court may, if it is so advised, abstain and permit the California courts to construe the California statute. On the other hand, it may be that adding to *742 the qualified pool of signers all those nonpartisan voters at the primary may make so little difference in the ultimate assessment of the overall burden of the signature requirement that the status of the nonpartisan voter is in fact an insignificant consideration not meriting abstention.[12] Third, once the number of signatures required in the 24-day period is ascertained, along with the total pool from which they may be drawn, there will arise the inevitable question for judgment: in the context of California politics, could a reasonably diligent independent candidate be expected to satisfy the signature requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot? Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not. We note here that the State mentions only one instance of an independent candidate's qualifying for any office under \u00a7 6430, but disclaims having made any comprehensive survey of the official records that would perhaps reveal the truth of the matter. One of the difficulties will be that the number of signatures required will vary with the total vote in the last election; *743 the total disqualifying vote at the primary election and hence the size of the eligible pool of possible signers will also vary from election to election. Also to be considered is the relationship between the showing of support through a petition requirement and the percentage of the vote the State can reasonably expect of a candidate who achieves ballot status in the general election. As a preliminary matter, it would appear that the State, having disqualified defeated candidates and recent defectors, has in large part achieved its major purpose of providing and protecting an effective direct primary system and must justify its independent signature requirements chiefly by its interest in having candidates demonstrate substantial support in the community so that the ballot, in turn, may be protected from frivolous candidacies and kept within limits understandable to the voter. If the required signatures approach 10% of the eligible pool of voters, is it necessary to serve the State's compelling interest in a manageable ballot to require that the task of signature gathering be crowded into 24 days?[13] Of course, the petition period must end at a reasonable time before election day to permit nomination papers to be verified. Neither must California abandon its policy of confining each voter to a single nominating act\u2014either voting in the partisan primary or a signature on an independent petition. But the question remains whether signature gathering must *744 await conclusion of the primary. It would not appear untenable to permit solicitation of signatures to begin before primary day and finish afterwards. Those signing before the primary could either be definitely disqualified from a partisan vote in the primary election or have the privilege of canceling their petition signatures by the act of casting a ballot in the primary election. And if these alternatives are unacceptable, there would remain the question whether it is essential to demonstrate community support to gather signatures of substantially more than 5% of the group from which the independent is permitted to solicit support.[14] Appellees insist, however, that the signature requirements for independent candidates are of no consequence because California has provided a valid way for new political parties to qualify for ballot position, an alternative that Hall could have pursued, but did not. Under \u00a7 6430, new political parties can be recognized and qualify their candidate for ballot position if 135 days before a primary election it appears that voters equal in number to at least 1% of the entire vote of the State at the last preceding gubernatorial election have declared to the *745 county clerks their intention to affiliate with the new party, or if, by the same time, the new party files a petition with signatures equal in number to 10% of the last gubernatorial vote.[15] It is argued that the 1% registration requirement is feasible, has recently been resorted to successfully by two new political parties now qualified for the California ballot, and goes as far as California constitutionally must go in providing an alternative to the direct party primary of the major parties. It may be that the 1% registration requirement is a valid condition to extending ballot position to a new political party. Cf. American Party of Texas v. White, post, p. 767. But the political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other. A new party organization contemplates a state-wide, ongoing organization with distinctive political character. Its goal is typically to gain control of the machinery of state government by electing its candidates to public office. From the standpoint of a potential supporter, affiliation with the new party would mean giving up his ties with another party or sacrificing his own independent status, even though his possible interest in the new party centers around a particular candidate for a particular office. For the candidate himself, it would mean undertaking the serious responsibilities of qualified party status under California law, such as the conduct of a primary, holding party conventions, and the promulgation of party platforms. But more fundamentally, the candidate, who is by definition an independent and desires to remain one, must now consider himself a party man, *746 surrendering his independent status. Must he necessarily choose the political party route if he wants to appear on the ballot in the general election? We think not. In Williams v. Rhodes, the opportunity for political activity within either of two major political parties was seemingly available to all. But this Court held that to comply with the First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot. No discernible state interest justified the burdensome and complicated regulations that in effect made impractical any alternative to the major parties. Similarly, here, we perceive no sufficient state interest in conditioning ballot position for an independent candidate on his forming a new political party as long as the State is free to assure itself that the candidate is a serious contender, truly independent, and with a satisfactory level of community support.[16] Accordingly, we vacate the judgment in No. 72-812 insofar as it refused relief to Hall and Tyner and remand the case in this respect to the District Court for further proceedings consistent with this opinion. In all other respects, the judgment in No. 72-812 and No. 72-6050 is affirmed. So ordered.\n*747 APPENDIX TO OPINION OF THE COURT California Elections Code \u00a7 41. \"Nonpartisan office\" \"Nonpartisan office\" means an office for which no party may nominate a candidate. Judicial, school, county, and municipal offices are nonpartisan offices. \u00a7 311 [Supp. 1974]. Declaration of political affiliation; voting at primary elections At the time of registering and of transferring registration, each elector may declare the name of the political party with which he intends to affiliate at the ensuing primary election. The name of that political party shall be stated in the affidavit of registration and the index. If the elector declines to state his political affiliation. he shall be registered as \"Nonpartisan\" or \"Declines to state,\" as he chooses. If the elector declines to state his political affiliation, he shall be informed that no person shall be entitled to vote the ballot of any political party at any primary election unless he has stated the name of the party with which he intends to affiliate at the time of registration. He shall not be permitted to vote the ballot of any party or for delegates to the convention of any party other than the party designated in his registration. \u00a7 2500. General election There shall be held throughout the State, on the first Tuesday after the first Monday of November in every even-numbered year, an election, to be known as the general election. \u00a7 2501. Direct primary For the nomination of all candidates to be voted for at the general election, a direct primary shall be held at *748 the legally designated polling places in each precinct on the first Tuesday after the first Monday in the immediately preceding June. \u00a7 2502. Primary elections Any primary election other than the direct primary or presidential primary shall be held on Tuesday, three weeks next preceding the election for which the primary election is held. \u00a7 6401 [Supp. 1974]. Party affiliation No declaration of candidacy for a partisan office or for membership on a county central committee shall be filed, either by the candidate himself or by sponsors on his behalf, (1) unless at the time of presentation of the declaration and continuously for not less than three months immediately prior to that time, or for as long as he has been eligible to register to vote in the state, the candidate is shown by his affidavit of registration to be affiliated with the political party the nomination of which he seeks, and (2) the candidate has not been registered as affiliated with a political party other than that political party the nomination of which he seeks within 12 months immediately prior to the filing of the declaration. The county clerk shall attach a certificate to the declaration of candidacy showing the date on which the candidate registered as intending to affiliate with the political party the nomination of which he seeks, and indicating that the candidate has not been affiliated with any other political party for the 12-month period immediately preceding the filing of the declaration. \u00a7 6402. Independent nominees This chapter does not prohibit the independent nomination of candidates under the provisions of Chapter 3 *749 (commencing at Section 6800) of this division, subject to the following limitations: (a) A candidate whose name has been on the ballot as a candidate of a party at the direct primary and who has been defeated for that party nomination is ineligible for nomination as an independent candidate. He is also ineligible as a candidate named by a party central committee to fill a vacancy on the ballot for a general election. (b) No person may file nomination papers for a party nomination and an independent nomination for the same office, or for more than one office at the same election. \u00a7 6430. Qualified parties A party is qualified to participate in any primary election: (a) If at the last preceding gubernatorial election there was polled for any one of its candidates who was the candidate of that party only for any office voted on throughout the State, at least 2 percent of the entire vote of the State; or (b) If at the last preceding gubernatorial election there was polled for any one of its candidates who, upon the date of that election, as shown by the affidavits of registration of voters in the county of his residence, was affiliated with that party and was the joint candidate of that party and any other party for any office voted on throughout the State, at least 6 percent of the entire vote of the State; or (c) If on or before the 135th day before any primary election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their political affiliations transmitted to him by the county clerks, that voters equal in number to at least 1 percent of the entire vote of the State at the last preceding gubernatorial election have declared their intention to affiliate with that party; or *750 (d) If on or before the 135th day before any primary election, there is filed with the Secretary of State a petition signed by voters, equal in number to at least 10 percent of the entire vote of the State at the last preceding gubernatorial election, declaring that they represent a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that primary election. This petition shall be circulated, signed, verified and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county clerks substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point blackface type, which caption shall be the name of the proposed party followed by the words \"Petition to participate in the primary election.\" No voters or organization of voters shall assume a party name or designation which is so similar to the name of an existing party as to mislead voters. Whenever the registration of any party which qualified in the previous direct primary election falls below one-fifteenth of 1 percent of the total state registration, that party shall not be qualified to participate in the primary election but shall be deemed to have been abandoned by the voters, since the expense of printing ballots and holding a primary election would be an unjustifiable expense and burden to the State for so small a group. The Secretary of State shall immediately remove the name of the party from any list, notice, ballot, or other publication containing the names of the parties qualified to participate in the primary election. \u00a7 6490 [Supp. 1974]. Declaration of candidacy No candidate's name shall be printed on the ballot to be used at a direct primary unless a declaration of his *751 candidacy is filed not less than 83 and not more than 113 days prior to the direct primary. The declaration may be made by the candidate or by sponsors on his behalf. When the declaration is made by sponsors the candidate's affidavit of acceptance shall be filed with the declaration. \u00a7 6611. Unsuccessful candidate; ineligibility as candidate of another party A candidate who fails to receive the highest number of votes for the nomination of the political party with which he was registered as affiliated on the date his declaration of candidacy or declaration of acceptance of nomination was filed with the county clerk cannot be the candidate of any other political party. \u00a7 6803. Group of candidates for presidential electors; designation of presidential and vice presidential candidates Whenever a group of candidates for presidential electors, equal in number to the number to the number of presidential electors to which this State is entitled, files a nomination paper with the Secretary of State pursuant to this chapter, the nomination paper may contain the name of the candidate for President of the United States and the name of the candidate for Vice President of the United States for whom all of those candidates for presidential electors pledge themselves to vote. \u00a7 6804. Printing of names on ballot When a group of candidates for presidential electors designates the presidential and vice presidential candidates for whom all of the group pledge themselves to vote, the names of the presidential candidate and vice presidential candidate designated by that group shall be printed on the ballot. *752 \u00a7 6830 [Supp. 1974]. Contents Each candidate or group of candidates shall file a nomination paper which shall contain: (a) The name and residence address of each candidate, including the name of the county in which he resides. (b) A designation of the office for which the candidate or group seeks nomination. (c) A statement that the candidate and each signer of his nomination paper did not vote at the immediately preceding primary election at which a candidate was nominated for the office mentioned in the nomination paper. The statement required in this subdivision shall be omitted when no candidate was nominated for the office at the preceding primary election. (d) A statement that the candidate is not, and was not at any time during the one year preceding the immediately preceding primary election at which a candidate was nominated for the office mentioned in the nomination paper, registered as affiliated with a political party qualified under the provisions of Section 6430. The statement required by this subdivision shall be omitted when no primary election was held to nominate candidates for the office to which the independent nomination paper is directed. \u00a7 6831. Signatures required Nomination papers shall be signed by voters of the area for which the candidate is to be nominated, not less in number than 5 percent nor more than 6 percent of the entire vote cast in the area at the preceding general election. Nomination papers for Representative in Congress, State Senator or Assemblyman, to be voted for at a special election to fill a vacancy, shall be signed by voters in the district not less in number than 500 or 1 percent of the entire vote cast in the area at the preceding *753 general election, whichever is less, nor more than 1,000. \u00a7 6833 [Supp. 1974]. Time for filing, circulation and signing; verification Nomination papers required to be filed with the Secretary of State or with the county clerk shall be filed not more than 79 nor less than 54 days before the day of the election, but shall be prepared, circulated, signed, verified and left with the county clerk for examination, or for examination and filing, no earlier than 84 days before the election and no later than 5 p. m. 60 days before the election. If the total number of signatures submitted to a county clerk for an office entirely within that county does not equal the number of signatures needed to qualify the candidate, the county clerk shall declare the petition void and is not required to verify the signatures. If the district falls within two or more counties, the county clerk shall within two working days report in writing to the Secretary of State the total number of signatures filed. If the Secretary of State finds that the total number of signatures filed in the district or state is less than the minimum number required to qualify the candidate he shall within one working day notify in writing the counties involved that they need not verify the signatures. \u00a7 10014. Ballots for voters at primary elections At a primary election only a nonpartisan ballot shall be furnished to each voter who is not registered as intending to affiliate with any one of the political parties participating in the primary election; and to any voter registered as intending to affiliate with a political party participating in a primary election, there shall be furnished only a ballot of the political party with which he is registered as intending to affiliate. *754 \u00a7 10232. Inconveniently large ballots If the election board of a county determines that due to the number of candidates and measures that must be printed on the general election ballot, the ballot will be larger than may be conveniently handled, the board may order nonpartisan offices and local measures omitted from the general election ballot and printed on a separate ballot in a form substantially the same as provided for the general election ballot. If the board so orders, each voter shall receive both ballots, and the procedure prescribed for the handling and canvassing of ballots shall be modified to the extent necessary to permit the use of two ballots by a voter. The board may, in such case, order the second ballot to be printed on paper of a different tint and assign to those ballots numbers higher than those assigned to the ballots containing partisan offices and statewide ballot measures. \u00a7 10318. Inconveniently large ballots If the election board of a county determines that due to the number of candidates and measures that must be printed on the direct primary ballot the ballot will be larger than may be conveniently handled, the board may provide that a nonpartisan ballot shall be given to each partisan voter, together with his partisan ballot, and that the material appearing under the heading \"Nonpartisan Offices\" on partisan ballots, as well as the heading itself, shall be omitted from the partisan ballots. If the board so provides, the procedure prescribed for the handling and canvassing of ballots shall be modified to the extent necessary to permit the use of two ballots by partisan voters. \u00a7 18600 [Supp. 1974]. Write-in votes Any name written upon a ballot shall be counted, unless prohibited by Section 18603, for that name for the *755 office under which it is written, if it is written in the blank space therefor, whether or not a cross (+) is stamped or made with pen or pencil in the voting square after the name so written. \u00a7 18601 [Supp. 1974]. Declaration required Every person who desires to have his name as written on the ballots of an election counted for a particular office shall file a declaration stating that he is a write-in candidate for the nomination for or election to the particular office and giving the title of that office. \u00a7 18602 [Supp. 1974]. Declaration; filing The declaration required by Section 18601 shall be filed no later than the eighth day prior to the election to which it applies. It shall be filed with the clerks, registrar of voters, or district secretary responsible for the conduct of the election in which the candidate desires to have write-in votes of his name counted. \u00a7 18603 [Supp. 1974]. Requirements for tabulation of write-in vote No name written upon a ballot in any state, county, city, city and county, or district election shall be counted for an office or nomination unless (a) A declaration has been filed pursuant to Sections 18601 and 18602 declaring a write-in candidacy for that particular person for that particular office or nomination and (b) The fee required by Section 6555 is paid when the declaration of write-in candidacy is filed pursuant to Section 18602. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL concur, dissenting. The Court's opinion in these cases, and that in American Party of Texas v. White, post, p. 767, hold\u2014correctly *756 in my view\u2014that the test of the validity of state legislation regulating candidate access to the ballot is whether we can conclude that the legislation, strictly scrutinized, is necessary to further compelling state interests. See ante, at 736; American Party of Texas v. White, post, at 780-781; for, as we recognized in Williams v. Rhodes, 393 U.S. 23, 30 (1968), such state laws \"place burdens on two different, although overlapping, kinds of rights\u2014the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.\" The right to vote derives from the right of association that is at the core of the First Amendment, protected from state infringement by the Fourteenth Amendment. NAACP v. Button, 371 U.S. 415, 430 (1963); Bates v. Little Rock, 361 U.S. 516, 522-523 (1960); NAACP v. Alabama, 357 U.S. 449, 460-461 (1958). Indeed, the right to vote is \"a fundamental political right, because preservative of all rights,\" Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and \"[o]ther rights, even the most basic, are illusory if the right to vote is undermined,\" Wesberry v. Sanders, 376 U.S. 1, 17 (1964). See also Reynolds v. Sims, 377 U.S. 533, 555 (1964). Thus, when legislation burdens such a fundamental constitutional right, it is not enough that the legislative means rationally promote legitimate governmental ends. Rather, \"governmental action may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest. Shapiro v. Thompson, 394 U. S. [618, 634 (1969)]; United States v. Jackson, 390 U.S. 570, 582-583 (1968); Sherbert v. Verner, 374 U.S. 398, 406-409 (1963). And once it be determined that a burden has been *757 placed upon a constitutional right, the onus of demonstrating that no less intrusive means will adequately protect compelling state interests is upon the party seeking to justify the burden. See Speiser v. Randall, 357 U.S. 513, 525-526 (1958).\" Oregon v. Mitchell, 400 U.S. 112, 238 (1970) (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.). See also Dunn v. Blumstein, 405 U.S. 330, 336-337 (1972); Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Williams v. Rhodes, 393 U. S., at 31. I have joined the Court's opinion in American Party of Texas v. White, supra,[1] because I agree that, although the conditions for access to the general election ballot imposed by Texas law burden constitutionally protected rights, nevertheless those laws \"are constitutionally valid measures, reasonably taken in pursuit of vital state objectives that cannot be served equally well in significantly less burdensome ways.\" Post, at 781. I dissent, however, from the Court's holding in these cases that, although the California party disaffiliation rule, Cal. Elections Code \u00a7 6830 (d) (Supp. 1974), also burdens constitutionally protected rights, California's compelling state interests \"cannot be served equally well in significantly less burdensome ways.\" I The California statute absolutely denies ballot position to independent candidates who, at any time within 12 months prior to the immediately preceding primary election, were registered as affiliated with a qualified political party. Intertwined with Cal. Elections Code \u00a7\u00a7 2500-2501 (1961), which require primary elections *758 to be held five months before the general election, \u00a7 6830 (d) (Supp. 1974) plainly places a significant burden upon independent candidacy\u2014and therefore effectively burdens as well the rights of potential supporters and voters to associate for political purposes and to vote, see Williams v. Rhodes, supra, at 30; Bullock v. Carter, 405 U.S. 134, 143 (1972)\u2014because potential independent candidates, currently affiliated with a recognized party, are required to take affirmative action toward candidacy fully 17 months before the general election. Thus, such candidates must make that decision at a time when, as a matter of the realities of our political system, they cannot know either who will be the nominees of the major parties, or what the significant election issues may be. That is an impossible burden to shoulder. We recognized in Williams v. Rhodes, supra, at 33, that \"the principal policies of the major parties change to some extent from year to year, and . . . the identity of the likely major party nominees may not be known until shortly before the election . . . .\" Today, not even the casual observer of American politics can fail to realize that often a wholly unanticipated event will in only a matter of months dramatically alter political fortunes and influence the voters' assessment of vital issues. By requiring potential independent candidates to anticipate, and crystallize their political responses to, these changes and events 17 months prior to the general election, \u00a7 6830 (d) (Supp. 1974) clearly is out of step with \"the potential fluidity of American political life,\" Jenness v. Fortson, 403 U.S. 431, 439 (1971), operating as it does to discourage independent candidacies and freeze the political status quo. The cases of appellants Storer and Frommhagen pointedly illustrate how burdensome California's party disaffiliation rule can be. Both Storer and Frommhagen sought to run in their respective districts as independent *759 candidates for Congress. The term of office for the United States House of Representatives, of course, is two years. Thus, \u00a7 6830 (d) (Supp. 1974) required Storer and Frommhagen to disaffiliate from their parties within seven months after the preceding congressional election. Few incumbent Congressmen, however, declare their intention to seek re-election seven months after election and only four months into their terms. Yet, despite the unavailability of this patently critical piece of information, Storer and Frommhagen were forced by \u00a7 6830 (d) (Supp. 1974) to evaluate their political opportunities and opt in or out of their parties 17 months before the next congressional election. The Court acknowledges the burdens imposed by \u00a7 6830 (d) (Supp. 1974) upon fundamental personal liberties, see ante, at 734, but agrees with the State's assertion that the burdens are justified by the State's compelling interest in the stability of its political system, ante, at 736. Without \u00a7 6830 (d) (Supp. 1974), the argument runs, the party's primary system, an integral part of the election process, is capable of subversion by a candidate who first opts to participate in that method of ballot access, and later abandons the party and its candidate-selection process, taking with him his party supporters. Thus, in sustaining the validity of \u00a7 6830 (d) (Supp. 1974), the Court finds compelling the State's interests in preventing splintered parties and unrestricted factionalism and protecting the direct-primary system, ante, at 736.[2] *760 But the identification of these compelling state interests, which I accept, does not end the inquiry. There remains the necessity of determining whether these vital state objectives \"cannot be served equally well in significantly less burdensome ways.\" Compelling state interests may not be pursued by \"means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with `precision,' NAACP v. Button, 371 U.S. 415, 438 (1963); United States v. Robel, 389 U.S. 258, 265 (1967), and must be `tailored' to serve their legitimate objectives. Shapiro v. Thompson [394 U.S. 618, 631 (1969)]. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose `less drastic means.' Shelton v. Tucker, 364 U.S. 479, 488 (1960).\" Dunn v. Blumstein, 405 U. S., at 343. While it is true that the Court purports to examine into \"less drastic means,\" its analysis is wholly inadequate. The discussion is limited to these passing remarks, ante, at 736: \"Nor do we have reason for concluding that the device California chose, \u00a7 6830 (d) (Supp. 1974), was not an essential part of its overall mechanism to achieve its acceptable goals. As we indicated in Rosario, the Constitution does not require the State to choose ineffectual means to achieve its aims. To conclude otherwise might sacrifice the political stability of the system of the State, with profound consequences *761 for the entire citizenry, merely in the interest of particular candidates and their supporters having instantaneous access to the ballot.\" Naturally, the Constitution does not require the State to choose ineffective means to achieve its aims. The State must demonstrate, however, that the means it has chosen are \"necessary.\" Shapiro v. Thompson, 394 U.S. 618, 634 (1969). See also American Party of Texas v. White, post, at 780-781. I have searched in vain for even the slightest evidence in the records of these cases of any effort on the part of the State to demonstrate the absence of reasonably less burdensome means of achieving its objectives. This crucial failure cannot be remedied by the Court's conjecture that other means \"might sacrifice the political stability of the system of the State\" (emphasis added). When state legislation burdens fundamental constitutional rights, as conceded here, we are not at liberty to speculate that the State might be able to demonstrate the absence of less burdensome means; the burden of affirmatively demonstrating this is upon the State. Dunn v. Blumstein, supra, at 343; Shapiro v. Thompson, supra, at 634; Sherbert v. Verner, 374 U.S. 398, 406-409 (1963). Moreover, less drastic means\u2014which would not require the State to give appellants \"instantaneous access to the ballot\"\u2014seem plainly available to achieve California's objectives. First, requiring party disaffiliation 12 months before the primary elections is unreasonable on its face. There is no evidence that splintering and factionalism of political parties will result unless disaffiliation is effected that far in advance of the primaries. To the contrary, whatever threat may exist to party stability is more likely to surface only shortly before the primary, when the identities of the potential field of candidates and issues *762 become known. See Williams v. Rhodes, 393 U. S., at 33. Thus, the State's interests would be adequately served and the rights of the appellants less burdened if the date when disaffiliation must be effected were set significantly closer to the primaries. Second, the requirement of party disaffiliation could be limited to those independent candidates who actually run in a party primary. Section 6830 (d) (Supp. 1974) sweeps far too broadly in its application to potential independent candidates who, though registered as affiliated with a recognized party, do not run for the party's nomination. Such an independent candidate plainly poses no threat of utilizing the party machinery to run in the primary, and then declaring independent candidacy, thereby splitting the party.\nII I also dissent from the Court's remand, in the case of appellants Hall and Tyner, of the question concerning the constitutionality of the petition requirements imposed upon independent candidates. Under the relevant statutes, Hall and Tyner, candidates for President and Vice President, were required to file signatures equal to 5% of the total vote cast in California's preceding general election. \u00a7 6831. However, the pool from which signatures could be drawn excluded all persons who had voted in the primary elections, including voters who had cast nonpartisan ballots. \u00a7 6830 (c) (Supp. 1974). Furthermore, circulation of the petitions was not permitted until two months after the primaries, and the necessary signatures were required to be obtained during a 24-day period. \u00a7 6833 (Supp. 1974). The Court avoids resolving the constitutionality of these election laws by remanding to the District Court for further proceedings. On remand, the District Court is directed to determine (1) the total vote cast in the last general election as a predicate *763 to computation of the 5% of signatures required by the statutory provision, and (2) the size of the pool to which appellants were required to limit their efforts in obtaining signatures. The Court reasons that these findings are necessary to a determination \"whether the available pool is so diminished in size by the disqualification of those who voted in the primary that the 325,000-signature requirement, to be satisfied in 24 days, is too great a burden on the independent candidates for the offices of President and Vice President.\" Ante, at 740. If such a remand were directed in the cases of Storer and Frommhagen I could agree, for in those cases there is a complete absence of data necessary to facilitate determination of the actual percentage of available voters that appellants Storer and Frommhagen were required to secure. A remand in the case of Hall and Tyner, however, is unnecessary because the data upon which relevant findings must be based are already available to us. The data are cited by the Court, ante, at 742 n. 12 and at 744 n. 14. Evaluated in light of our decision in Jenness v. Fortson, supra, the data leave no room for doubt that California's statutory requirements are unconstitutionally burdensome as applied to Hall and Tyner. Official voting statistics published by the California Secretary of State indicate that 6,633,400 persons voted in the 1970 general election. See Secretary of State, Statement of Vote, General Election, November 7, 1972, p. 6. Appellants were required to secure signatures totaling 5% of that number, i. e., 331, 670. The statistics also indicate the size of the total pool from which appellants were permitted to gather signatures. The total number of registered voters on September 14, 1972\u2014the last day appellants were permitted to file nomination petitions\u2014was 9,953,124. See Secretary of State, Report of Registration, September 1972, p. 8. Of that number, 6,460,220 *764 registered voters could not sign petitions because they had voted in the 1972 primary elections. See Secretary of State, Statement of Vote, Consolidated Primary Election, June 6, 1972, pp. 3, 4-23. Thus, the total pool of registered voters available to appellants was reduced to approximately 3,492,904, of which the required 331,670 signatures was 9.5%.[3] In my view, a percentage requirement even approaching the range of 9.5% serves no compelling state interest which cannot be served as well by less drastic means. To be sure, in Jenness we acknowledged that: \"There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot\u2014the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.\" 403 U.S., at 442. We there upheld the constitutionality of Georgia's election laws requiring potential independent candidates to gather the signatures equal to 5% of the total eligible electorate at the last general election for the office in question. However, candidates were given a full six months to circulate petitions and no restrictions were placed upon the pool of registered voters from which *765 signatures could be drawn. In that circumstance, we found that Georgia imposed no unduly burdensome restrictions upon the free circulation of nominating petitions. We noted: \"A voter may sign a petition even though he has signed others, and a voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary. The signer of a petition is not required to state that he intends to vote for that candidate at the election. A person who has previously voted in a party primary is fully eligible to sign a petition, and so, on the other hand, is a person who was not even registered at the time of the previous election. No signature on a nominating petition need be notarized.\" Id., at 438-439 (footnotes omitted). Thus, although Georgia's 5% requirement was higher than that required by most States, the Court found it \"balanced by the fact that Georgia . . . imposed no arbitrary restrictions whatever upon the eligibility of any registered voter to sign as many nominating petitions as he wishes.\" Id., at 442. California seeks to justify its election laws by pointing to the same substantial interests we identified in Jenness, of insuring that candidates possess a modicum of support, and that voters are not confused by the length of the ballot. But in sharp contrast to the election laws we upheld in Jenness, California's statutory scheme greatly restricted the pool of registered voters from which appellants Hall and Tyner were permitted to draw signatures. The 5% requirement, in reality, forced them to secure the signatures of 9.5% of the voters permitted by law to sign nomination petitions. Moreover, unlike Georgia's six-month period for gathering signatures, *766 the California election laws required appellants to meet that State's higher percentage requirement in only 24 days. Thus, even conceding the substantiality of its aims, the State has completely failed to demonstrate why means less drastic than its high percentage requirement and short circulation period\u2014such as the statutory scheme enacted in Georgia\u2014will not achieve its interests. Accordingly, I would reverse the judgment of the District Court dismissing these actions, and remand for further proceedings consistent with this opinion. NOTES [*] Together with No. 72-6050, Frommhagen v. Brown, Secretary of State of California, et al., also on appeal from the same court. [\u2020] Rolland R. O'Hare filed a brief for the Committee for Democratic Election Laws as amicus curiae in No. 72-812. [1] The relevant provisions of the California Elections Code are printed in the appendix to this opinion. [2] Storer's action, No. 72-812, was filed first. Frommhagen was allowed to intervene. Hall and Tyner later filed suit. In its opinion the District Court noted that \"[b]y appropriate orders and stipulations, although the cases were never consolidated, the parties to Hall will be bound by the rulings made in Storer which are common to both cases and any separate issues in Hall stand submitted without further briefing or oral argument. The view taken by the Court herein is such that there are no separate issues in Hall and the rulings expressed are dispositive of both cases.\" [3] Storer sought to be a candidate from the Sixth Congressional District, Frommhagen from the Twelfth. [4] The California Elections Code \u00a7 41 provides that judicial, school, county, and municipal offices are nonpartisan offices for which no party may nominate a candidate. [5] See Gaylord, History of the California Election Laws 59, contained in West's Ann. Elec. Code (1961), preceding \u00a7\u00a7 1-11499. [6] See In re McGee, 36 Cal. 2d 592, 226 P.2d 1 (1951). [7] Moreover, we note that the independent candidate who cannot qualify for the ballot may nevertheless resort to the write-in alternative provided by California law, see \u00a7\u00a7 18600-18603 (Supp. 1974). [8] The 1972 election is long over, and no effective relief can be provided to the candidates or voters, but this case is not moot, since the issues properly presented, and their effects on independent candidacies, will persist as the California statutes are applied in future elections. This is, therefore, a case where the controversy is \"capable of repetition, yet evading review.\" Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2 (1972); Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). The \"capable of repetition, yet evading review\" doctrine, in the context of election cases, is appropriate when there are \"as applied\" challenges as well as in the more typical case involving only facial attacks. The construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held. [9] In California, presidential electors must meet candidacy requirements and file their nomination papers with the required signatures. \u00a7\u00a7 6803, 6830. The State claims, therefore, that the electors, not Hall and Tyner, are the only persons with standing to raise the validity of the signature requirements. But it is Hall's and Tyner's names that go on the California ballot for consideration of the voters. \u00a7 6804. Without the necessary signatures this will not occur. It is apparent, contrary to the State's suggestion, that Hall and Tyner have ample standing to challenge the signature requirement.\nHereafter, in the text and notes, reference to Hall should be understood as referring also to Tyner. [10] See also Auerbach v. Mandel, 409 U.S. 808 (1972) (3%); Wood v. Putterman, 316 F. Supp. 646 (Md. 1970) (three-judge court), aff'd mem., 400 U.S. 859 (1970) (3%); and Beller v. Kirk, 328 F. Supp. 485 (SD Fla. 1970) (three-judge court), aff'd mem. sub nom. Beller v. Askew, 403 U.S. 925 (1971) (3%). We note that in Socialist Labor Party v. Rhodes, 318 F. Supp. 1262 (SD Ohio 1970) (three-judge court), the District Court struck down a 7% petition requirement. That issue became moot on appeal, Socialist Labor Party v. Gilligan, 406 U.S. 583, 585 (1972). [11] Two ballots are authorized in California primaries, the one for partisan office and the other for nonpartisan offices and propositions. See \u00a7\u00a7 10014, 10232, 10318. A voter may take only the nonpartisan ballot and refrain from voting on partisan candidates. [12] From the official published voting statistics published by the California Secretary of State, it would appear that the total vote in the 1972 primaries, seemingly the total number of persons voting, was 6,460,220, while the total vote for partisan presidential candidates was 5,880,845. Thus all but approximately 579,000 voted for a partisan candidate in the presidential primary and it is likely that many of the 579,000 not voting for President cast a partisan ballot for other candidates. But assuming that they did not, the maximum addition to the pool available to Hall would be 579,000, probably a relatively small difference in terms of the total number of eligible signers. See Secretary of State, Statement of Vote, State of California, Consolidated Primary Election, June 6, 1972, pp. 3, 4-23. [13] Appellees argue only that the independent candidate's canvassing for signatures should await the announcement of the primary winners and the promulgation of party platforms so that the voters eligible to sign, i. e., those not voting in the primary, will have a meaningful choice between the primary nominations and the independents. This does not appear to be a matter particularly relevant to signing petitions for ballot position, for the meaningful choice referred to by appellees will be finally presented at the general election. [14] It may help to put this case in proper context to hypothesize the scope of Hall's petition and signature burden under the California law by employing the election statistics available from official sources in California. Assuming that the \"entire vote\" in the last general election was the total number of persons voting in the 1970 election, 6,633,400, 5% of that figure, or the total number of signatures required, is 331,670. See Secretary of State, Statement of Vote, General Election, November 7, 1972, p. 6. The total registration for the 1972 primary was 9,105,287. See 1972 Primary Vote, p. 3. Adding to this figure an estimate of the increase in registration since the primary date and subtracting the minimum partisan vote at the primary election, the available pool of possible signers, by this calculation, would be 4,072,279, see Secretary of State, Report of Registration, September 1972, p. 8, of which the required 331,670 signatures was 8.1%. [15] The 1% registration requirement contemplates independent voters registering as affiliated with the party. The 10%-signature requirement, on the other hand, need not involve signers changing their registration. [16] Appellants also contend that \u00a7 6830 (d) (Supp. 1974) purports to establish an additional qualification for office of Representative and is invalid under Art. I, \u00a7 2, cl. 2, of the Constitution. The argument is wholly without merit. Storer and Frommhagen would not have been disqualified had they been nominated at a party primary or by an adequately supported independent petition and then elected at the general election. The non-affiliation requirement no more establishes an additional requirement for the office of Representative than the requirement that the candidate win the primary to secure a place on the general ballot or otherwise demonstrate substantial community support. [1] MR. JUSTICE DOUGLAS adheres to the views stated in his opinion dissenting in part in American Party of Texas v. White, post, p. 795. [2] The Court also opines that \u00a7 6830 (d) (Supp. 1974) may be \"a substantial barrier to a party fielding an `independent' candidate to capture and bleed off votes in the general election that might well go to another party,\" ante, at 735. But the State suggests no reliance upon this alleged interest and we are therefore not at liberty to turn our decision upon our conjecture that this might have been a state objective. In any event, the prospect of such a misuse seems more fanciful than real and, as we said in Williams v. Rhodes, 393 U.S. 23, 33 (1968), \"[n]o such remote danger can justify [an] immediate and crippling impact on . . . basic constitutional rights . . . .\" [3] The Court's computations, ante, at 744 n. 14, suggest that Hall and Tyner need only have collected signatures from 8.1% of the available voter pool. The Court's calculation assumes that the voter pool available to Hall and Tyner included approximately 579,000 persons who may have only voted in nonpartisan primaries. Section 6830 (c) (Supp. 1974) makes no such exception; the pool available for signatures is expressly limited to those voters who \"did not vote at the immediately preceding primary election . . . . \" I agree with the Court, however, that exclusion of persons voting at nonpartisan primaries is not supported by a compelling state interest.","meta":{"dup_signals":{"dup_doc_count":1021,"dup_dump_count":87,"dup_details":{"2024-30":1,"2024-26":1,"2024-10":1,"2017-13":7,"2015-18":37,"2015-11":37,"2015-06":40,"2014-10":22,"2013-48":29,"2013-20":20,"2023-50":1,"2023-40":1,"2023-23":3,"2023-06":2,"2022-49":2,"2022-27":2,"2022-21":1,"2022-05":4,"2021-49":3,"2021-43":1,"2021-39":1,"2021-31":1,"2021-25":1,"2021-21":1,"2021-10":2,"2020-50":1,"2020-45":2,"2020-40":1,"2020-34":1,"2020-29":1,"2020-16":1,"2019-51":2,"2019-47":3,"2019-43":3,"2019-39":2,"2019-30":2,"2019-26":1,"2019-22":1,"2019-18":3,"2019-13":1,"2019-04":2,"2018-51":2,"2018-47":3,"2018-43":2,"2018-39":1,"2018-34":1,"2018-30":1,"2018-26":2,"2018-22":1,"2018-17":3,"2018-13":3,"2018-09":3,"2018-05":4,"2017-51":5,"2017-47":6,"2017-43":4,"2017-39":6,"2017-34":4,"2017-30":5,"2017-26":5,"2017-22":6,"2017-17":3,"2017-09":36,"2017-04":7,"2016-50":6,"2016-44":8,"2016-40":8,"2016-36":8,"2016-30":7,"2016-26":2,"2016-22":3,"2016-18":4,"2016-07":31,"2015-48":29,"2015-40":24,"2015-35":35,"2015-32":33,"2015-27":27,"2015-22":10,"2015-14":35,"2014-52":40,"2014-49":43,"2014-42":69,"2014-41":61,"2014-35":58,"2014-23":61,"2014-15":58}}},"subset":"freelaw"}
{"text":"598 So. 2d 1020 (1992) Ex parte State of Alabama. (Re Colon Lavon GUTHRIE v. STATE). 1910663. Supreme Court of Alabama. April 17, 1992. James H. Evans, Atty. Gen., and Gilda Branch Williams and Sandra J. Stewart, Asst. Attys. Gen., for petitioner. *1021 Steven W. Hawkins, New York City, Steve Baccus and James L. Hunt, Tuscumbia, for respondent. Prior report: Ala.Cr.App., 598 So. 2d 1013. PER CURIAM. WRIT DENIED. HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur. HOUSTON, J., dissents. HOUSTON, Justice (dissenting). I would grant the writ; therefore, I dissent.\n\"THE GODS OF THE COPYBOOK HEADINGS\" Rudyard Kipling \"As I pass through my incarnations in every age and race, I make my proper prostrations to the Gods of the Market-Place. Peering through reverent fingers I watch them flourish and fall, And the Gods of the Copybook Headings, I notice, outlast them all. \"We were living in trees when they met us. They showed us each in turn That Water would certainly wet us, as Fire would certainly burn: But we found them lacking in Uplift, Vision and Breadth of Mind, So we left them to teach the Gorillas while we followed the March of Mankind. \"We moved as the Spirit listed. They never altered their pace, Being neither cloud nor wind-borne like the Gods of the Market-Place; But they always caught up with our progress, and presently word would come That a tribe had been wiped off its icefield, or the lights had gone out in Rome. \"With the Hopes that our World is built on they were utterly out of touch. They denied that the Moon was Stilton; they denied she was even Dutch. They denied that Wishes were Horses; they denied that a Pig had wings. So we worshipped the Gods of the Market Who promised these beautiful things. \"When the Cambrian measures were forming, They promised perpetual peace. They swore, if we gave them our weapons, that the wars of the tribes would cease. But when we disarmed They sold us and delivered us bound to our foe, And the Gods of the Copybook Headings said: `Stick to the Devil you know.' \"On the first Feminian Sandstones we were promised the Fuller Life (Which started by loving our neighbour and ended by loving his wife) Till our women had no more children and the men lost reason and faith. And the Gods of the Copybook Headings said: `The Wages of Sin is Death.' \"In the Carboniferous Epoch we were promised abundance for all, By robbing selected Peter to pay for collective Paul; But, though we had plenty of money, there was nothing our money could buy, And the Gods of the Copybook Headings said: `If you don't work you die.' \"Then the Gods of the Market tumbled, and their smooth-tongued wizards withdrew. And the hearts of the meanest were humbled and began to believe it was true. That All is not Gold that Glitters, and Two and Two make Four\u2014 And the Gods of the Copybook Headings limped up to explain it once more. \". . . . \"As it will be in the future, it was at the birth of Man\u2014 There are only four things certain since Social Progress began\u2014 That the Dog returns to his Vomit and the Sow returns to her Mire, *1022 And the burnt Fool's bandaged finger goes wabbling back to the Fire; And that after this is accomplished, and the brave new world begins When all men are paid for existing and no man must pay for his sins, As surely as Water will wet us, as surely as Fire will burn, The Gods of the Copybook Headings with terror and slaughter return!\" What does Kipling's poem have to do with this case? Nothing. However, since we are digging a grave in preparation for burying the peremptory challenge, I thought that this was a fitting eulogy.","meta":{"dup_signals":{"dup_doc_count":3051,"dup_dump_count":99,"dup_details":{"2019-13":23,"2024-30":7,"2024-26":14,"2024-22":11,"2024-18":14,"2024-10":17,"2017-13":60,"2015-18":26,"2015-11":22,"2015-06":19,"2014-10":29,"2013-48":29,"2013-20":32,"2023-50":15,"2023-40":19,"2023-23":24,"2023-14":22,"2023-06":36,"2022-49":26,"2022-40":35,"2022-33":10,"2022-27":24,"2022-21":36,"2022-05":21,"2021-49":15,"2021-43":43,"2021-39":10,"2021-31":42,"2021-25":13,"2021-21":32,"2021-17":35,"2021-10":25,"2021-04":31,"2020-50":13,"2020-45":11,"2020-40":32,"2020-34":12,"2020-29":21,"2020-24":13,"2020-16":28,"2020-10":19,"2020-05":26,"2019-51":18,"2019-47":22,"2019-43":16,"2019-39":20,"2019-35":19,"2019-30":23,"2019-26":16,"2019-22":25,"2019-18":6,"2019-09":20,"2019-04":24,"2018-51":20,"2018-47":16,"2018-43":29,"2018-39":10,"2018-34":15,"2018-30":75,"2018-26":50,"2018-22":30,"2018-17":43,"2018-13":59,"2018-09":71,"2018-05":68,"2017-51":70,"2017-47":69,"2017-43":88,"2017-39":80,"2017-34":82,"2017-30":79,"2017-26":81,"2017-22":72,"2017-17":70,"2017-09":43,"2017-04":36,"2016-50":33,"2016-44":32,"2016-40":27,"2016-36":20,"2016-30":20,"2016-26":14,"2016-22":17,"2016-18":18,"2016-07":21,"2015-48":19,"2015-40":17,"2015-35":21,"2015-32":21,"2015-27":18,"2015-22":23,"2015-14":19,"2014-52":20,"2014-49":28,"2014-42":58,"2014-41":31,"2014-35":38,"2014-23":45,"2014-15":34}}},"subset":"freelaw"}
{"text":"510 U.S. 569 (1994) CAMPBELL, AKA SKYYWALKER, ET AL. v. ACUFF-ROSE MUSIC, INC. No. 92-1292. Supreme Court of United States. Argued November 9, 1993. Decided March 7, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *570 *571 SOUTER, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, post, p. 596. Bruce S. Rogow argued the cause for petitioners. With him on the briefs was Alan Mark Turk. Sidney S. Rosdeitcher argued the cause for respondent. With him on the brief were Peter L. Felcher and Stuart M. Cobert.[*] JUSTICE SOUTER delivered the opinion of the Court. We are called upon to decide whether 2 Live Crew's commercial parody of Roy Orbison's song, \"Oh, Pretty Woman,\" *572 may be a fair use within the meaning of the Copyright Act of 1976, 17 U. S. C. \u00a7 107 (1988 ed. and Supp. IV). Although the District Court granted summary judgment for 2 Live Crew, the Court of Appeals reversed, holding the defense of fair use barred by the song's commercial character and excessive borrowing. Because we hold that a parody's commercial character is only one element to be weighed in a fair use enquiry, and that insufficient consideration was given to the nature of parody in weighing the degree of copying, we reverse and remand.\nI In 1964, Roy Orbison and William Dees wrote a rock ballad called \"Oh, Pretty Woman\" and assigned their rights in it to respondent Acuff-Rose Music, Inc. See Appendix A, infra, at 594. Acuff-Rose registered the song for copyright protection. Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs are collectively known as 2 Live Crew, a popular rap music group.[1] In 1989, Campbell wrote a song entitled \"Pretty Woman,\" which he later described in an affidavit as intended, \"through comical lyrics, to satirize the original work. . . .\" App. to Pet. for Cert. 80a. On July 5, 1989, 2 Live Crew's manager informed Acuff-Rose that 2 Live Crew had written a parody of \"Oh, Pretty Woman,\" that they would afford all credit for ownership and authorship of the original song to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for the use they wished to make of it. Enclosed with the letter were a copy of the lyrics and a recording of 2 Live Crew's song. See Appendix B, infra, at 595. Acuff-Rose's agent refused permission, stating that \"I am aware of the success *573 enjoyed by `The 2 Live Crews', but I must inform you that we cannot permit the use of a parody of `Oh, Pretty Woman.'\" App. to Pet. for Cert. 85a. Nonetheless, in June or July 1989,[2] 2 Live Crew released records, cassette tapes, and compact discs of \"Pretty Woman\" in a collection of songs entitled \"As Clean As They Wanna Be.\" The albums and compact discs identify the authors of \"Pretty Woman\" as Orbison and Dees and its publisher as Acuff-Rose. Almost a year later, after nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement. The District Court granted summary judgment for 2 Live Crew,[3] reasoning that the commercial purpose of 2 Live Crew's song was no bar to fair use; that 2 Live Crew's version was a parody, which \"quickly degenerates into a play on words, substituting predictable lyrics with shocking ones\" to show \"how bland and banal the Orbison song\" is; that 2 Live Crew had taken no more than was necessary to \"conjure up\" the original in order to parody it; and that it was \"extremely unlikely that 2 Live Crew's song could adversely affect the market for the original.\" 754 F. Supp. 1150, 1154-1155, 1157-1158 (MD Tenn. 1991). The District Court weighed these factors and held that 2 Live Crew's song made fair use of Orbison's original. Id., at 1158-1159. The Court of Appeals for the Sixth Circuit reversed and remanded. 972 F. 2d 1429, 1439 (1992). Although it assumed for the purpose of its opinion that 2 Live Crew's song *574 was a parody of the Orbison original, the Court of Appeals thought the District Court had put too little emphasis on the fact that \"every commercial use . . . is presumptively . . . unfair,\" Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 451 (1984), and it held that \"the admittedly commercial nature\" of the parody \"requires the conclusion\" that the first of four factors relevant under the statute weighs against a finding of fair use. 972 F. 2d, at 1435, 1437. Next, the Court of Appeals determined that, by \"taking the heart of the original and making it the heart of a new work,\" 2 Live Crew had, qualitatively, taken too much. Id., at 1438. Finally, after noting that the effect on the potential market for the original (and the market for derivative works) is \"undoubtedly the single most important element of fair use,\" Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 566 (1985), the Court of Appeals faulted the District Court for \"refus[ing] to indulge the presumption\" that \"harm for purposes of the fair use analysis has been established by the presumption attaching to commercial uses.\" 972 F. 2d, at 1438-1439. In sum, the court concluded that its \"blatantly commercial purpose . . . prevents this parody from being a fair use.\" Id., at 1439. We granted certiorari, 507 U. S. 1003 (1993), to determine whether 2 Live Crew's commercial parody could be a fair use.\nII It is uncontested here that 2 Live Crew's song would be an infringement of Acuff-Rose's rights in \"Oh, Pretty Woman,\" under the Copyright Act of 1976, 17 U. S. C. \u00a7 106 (1988 ed. and Supp. IV), but for a finding of fair use through parody.[4]*575 From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, \"[t]o promote the Progress of Science and useful Arts. . . .\" U. S. Const., Art. I, \u00a7 8, cl. 8.[5] For as Justice Story explained, \"[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.\" Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845). Similarly, Lord Ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material and to allow others to build upon it when he wrote, \"while I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles upon science.\" *576 Carey v. Kearsley, 4 Esp. 168, 170, 170 Eng. Rep. 679, 681 (K. B. 1803). In copyright cases brought under the Statute of Anne of 1710,[6] English courts held that in some instances \"fair abridgements\" would not infringe an author's rights, see W. Patry, The Fair Use Privilege in Copyright Law 6-17 (1985) (hereinafter Patry); Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990) (hereinafter Leval), and although the First Congress enacted our initial copyright statute, Act of May 31, 1790, 1 Stat. 124, without any explicit reference to \"fair use,\" as it later came to be known,[7] the doctrine was recognized by the American courts nonetheless. In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841), Justice Story distilled the essence of law and methodology from the earlier cases: \"look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.\" Id., at 348. Thus expressed, fair use remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act, in which Justice Story's summary is discernible:[8] \"\u00a7 107. Limitations on exclusive rights: Fair use \"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular *577 case is a fair use the factors to be considered shall include\u2014 \"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; \"(2) the nature of the copyrighted work; \"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and \"(4) the effect of the use upon the potential market for or value of the copyrighted work. \"The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.\" 17 U. S. C. \u00a7 107 (1988 ed. and Supp. IV). Congress meant \u00a7 107 \"to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way\" and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). The fair use doctrine thus \"permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.\" Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks and citation omitted). The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms \"including\" and \"such as\" in the preamble paragraph to indicate the \"illustrative and not limitative\" function of the examples given, \u00a7 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and *578 Congress most commonly had found to be fair uses.[9] Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter).[10] A The first factor in a fair use enquiry is \"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.\" \u00a7 107(1). This factor draws on Justice Story's formulation, \"the nature and objects of the selections made.\" Folsom v. Marsh, supra, at 348. The enquiry here may be guided by the examples given in the preamble to \u00a7 107, looking to whether the use is for criticism, or comment, or news reporting, *579 and the like, see \u00a7 107. The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely \"supersede[s] the objects\" of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (\"supplanting\" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is \"transformative.\" Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40,[11] the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court's equal division. Benny v. Loew's Inc., 239 F. 2d 532 (CA9 1956), aff'd sub nom. Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U. S. 43 (1958). Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under \u00a7 107. See, e. g., Fisher v. Dees, 794 F. 2d 432 (CA9 1986) (\"When Sonny Sniffs Glue,\" a parody of \"When Sunny Gets Blue,\" is fair use); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 *580 (SDNY), aff'd, 623 F. 2d 252 (CA2 1980) (\"I Love Sodom,\" a \"Saturday Night Live\" television parody of \"I Love New York,\" is fair use); see also House Report, p. 65; Senate Report, p. 61 (\"[U]se in a parody of some of the content of the work parodied\" may be fair use). The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals dissent, as \"a song sung alongside another.\" 972 F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a \"literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,\"[12] or as a \"composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.\"[13] For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.[14] Parody needs to mimic *581 an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.[15] See ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25 (1987). The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioners' suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair, see Harper & Row, 471 U. S., at 561. The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law. Here, the District Court held, and the Court of Appeals assumed, that 2 Live Crew's \"Pretty Woman\" contains parody, *582 commenting on and criticizing the original work, whatever it may have to say about society at large. As the District Court remarked, the words of 2 Live Crew's song copy the original's first line, but then \"quickly degenerat[e] into a play on words, substituting predictable lyrics with shocking ones . . . [that] derisively demonstrat[e] how bland and banal the Orbison song seems to them.\" 754 F. Supp., at 1155 (footnote omitted). Judge Nelson, dissenting below, came to the same conclusion, that the 2 Live Crew song \"was clearly intended to ridicule the white-bread original\" and \"reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses.\" 972 F. 2d, at 1442. Although the majority below had difficulty discerning any criticism of the original in 2 Live Crew's song, it assumed for purposes of its opinion that there was some. Id., at 1435-1436, and n. 8. We have less difficulty in finding that critical element in 2 Live Crew's song than the Court of Appeals did, although having found it we will not take the further step of evaluating its quality. The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.[16] Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, \"[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At *583 the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.\" Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (circus posters have copyright protection); cf. Yankee Publishing Inc. v. News America Publishing, Inc., 809 F. Supp. 267, 280 (SDNY 1992) (Leval, J.) (\"First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed\") (trademark case). While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.[17] The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew's fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly *584 culled from Sony, that \"every commercial use of copy-righted material is presumptively . . . unfair. . . .\" Sony, 464 U. S., at 451. In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred. The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term \"including\" to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into \"purpose and character.\" As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. 471 U. S., at 561; House Report, p. 66. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of \u00a7 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities \"are generally conducted for profit in this country.\" Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that \"[n]o man but a blockhead ever wrote, except for money.\" 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934). Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a \"sensitive balancing of interests,\" 464 U. S., at 455, n. 40, noted that Congress had \"eschewed a rigid, bright-line approach to fair use,\" id., at *585 449, n. 31, and stated that the commercial or nonprofit educational character of a work is \"not conclusive,\" id., at 448-449, but rather a fact to be \"weighed along with other[s] in fair use decisions,\" id., at 449, n. 32 (quoting House Report, p. 66). The Court of Appeals's elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common-law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the \"fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.\" 471 U. S., at 562. But that is all, and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance. The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry than the sale of a parody for its own sake, let alone one performed a single time by students in school. See generally Patry & Perlmutter 679-680; Fisher v. Dees, 794 F. 2d, at 437; Maxtone-Graham v. Burtchaell, 803 F. 2d 1253, 1262 (CA2 1986); Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1522 (CA9 1992).[18] *586 B The second statutory factor, \"the nature of the copy-righted work,\" \u00a7 107(2), draws on Justice Story's expression, the \"value of the materials used.\" Folsom v. Marsh, 9 F. Cas., at 348. This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied. See, e. g., Stewart v. Abend, 495 U. S., at 237-238 (contrasting fictional short story with factual works); Harper & Row, 471 U. S., at 563-564 (contrasting soon-to-be-published memoir with published speech); Sony, 464 U. S., at 455, n. 40 (contrasting motion pictures with news broadcasts); Feist, 499 U. S., at 348-351 (contrasting creative works with bare factual compilations); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright \u00a7 13.05[A][2] (1993) (hereinafter Nimmer); Leval 1116. We agree with both the District Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls within the core of the copyright's protective purposes. 754 F. Supp., at 1155-1156; 972 F. 2d, at 1437. This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.\nC The third factor asks whether \"the amount and substantiality of the portion used in relation to the copyrighted work as a whole,\" \u00a7 107(3) (or, in Justice Story's words, \"the quantity and value of the materials used,\" Folsom v. Marsh, supra, at 348) are reasonable in relation to the purpose of the copying. Here, attention turns to the persuasiveness of a parodist's justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the extent of permissible copying varies with the purpose and character *587 of the use. See Sony, supra, at 449-450 (reproduction of entire work \"does not have its ordinary effect of militating against a finding of fair use\" as to home videotaping of television programs); Harper & Row, supra, at 564 (\"[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech\" but not in a scoop of a soon-to-be-published memoir). The facts bearing on this factor will also tend to address the fourth, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives. See Leval 1123. The District Court considered the song's parodic purpose in finding that 2 Live Crew had not helped themselves overmuch. 754 F. Supp., at 1156-1157. The Court of Appeals disagreed, stating that \"[w]hile it may not be inappropriate to find that no more was taken than necessary, the copying was qualitatively substantial. . . . We conclude that taking the heart of the original and making it the heart of a new work was to purloin a substantial portion of the essence of the original.\" 972 F. 2d, at 1438. The Court of Appeals is of course correct that this factor calls for thought not only about the quantity of the materials used, but about their quality and importance, too. In Harper & Row, for example, the Nation had taken only some 300 words out of President Ford's memoirs, but we signaled the significance of the quotations in finding them to amount to \"the heart of the book,\" the part most likely to be newsworthy and important in licensing serialization. 471 U. S., at 564-566, 568 (internal quotation marks omitted). We also agree with the Court of Appeals that whether \"a substantial portion of the infringing work was copied verbatim\" from the copyrighted work is a relevant question, see id., at 565, for it may reveal a dearth of transformative character or purpose under the first factor, or a greater likelihood of market harm under the fourth; a work composed primarily of an original, particularly its heart, with little added or changed, *588 is more likely to be a merely superseding use, fulfilling demand for the original. Where we part company with the court below is in applying these guides to parody, and in particular to parody in the song before us. Parody presents a difficult case. Parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to \"conjure up\" at least enough of that original to make the object of its critical wit recognizable. See, e. g., Elsmere Music, 623 F. 2d, at 253, n. 1; Fisher v. Dees, 794 F. 2d, at 438-439. What makes for this recognition is quotation of the original's most distinctive or memorable features, which the parodist can be sure the audience will know. Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the song's overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original. But using some characteristic features cannot be avoided. We think the Court of Appeals was insufficiently appreciative of parody's need for the recognizable sight or sound when it ruled 2 Live Crew's use unreasonable as a matter of law. It is true, of course, that 2 Live Crew copied the characteristic opening bass riff (or musical phrase) of the original, and true that the words of the first line copy the Orbison lyrics. But if quotation of the opening riff and the first line may be said to go to the \"heart\" of the original, the heart is also what most readily conjures up the song for parody, and it is the heart at which parody takes aim. Copying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart. If 2 Live Crew had copied a significantly less memorable part of the original, it is difficult to see how its parodic character *589 would have come through. See Fisher v. Dees, supra, at 439. This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free. In parody, as in news reporting, see Harper & Row, supra, context is everything, and the question of fairness asks what else the parodist did besides go to the heart of the original. It is significant that 2 Live Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends. 2 Live Crew not only copied the bass riff and repeated it,[19] but also produced otherwise distinctive sounds, interposing \"scraper\" noise, over-laying the music with solos in different keys, and altering the drum beat. See 754 F. Supp., at 1155. This is not a case, then, where \"a substantial portion\" of the parody itself is composed of a \"verbatim\" copying of the original. It is not, that is, a case where the parody is so insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against the parodists. Suffice it to say here that, as to the lyrics, we think the Court of Appeals correctly suggested that \"no more was taken than necessary,\" 972 F. 2d, at 1438, but just for that reason, we fail to see how the copying can be excessive in relation to its parodic purpose, even if the portion taken is the original's \"heart.\" As to the music, we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song's parodic purpose and character, its transformative elements, and considerations of the potential for market substitution sketched more fully below.\n*590 D The fourth fair use factor is \"the effect of the use upon the potential market for or value of the copyrighted work.\" \u00a7 107(4). It requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also \"whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market\" for the original. Nimmer \u00a7 13.05[A][4], p. 13-102.61 (footnote omitted); accord, Harper & Row, 471 U. S., at 569; Senate Report, p. 65; Folsom v. Marsh, 9 F. Cas., at 349. The enquiry \"must take account not only of harm to the original but also of harm to the market for derivative works.\" Harper & Row, supra, at 568. Since fair use is an affirmative defense,[20] its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.[21] In moving for summary judgment, 2 Live Crew left themselves at just such a disadvantage when they failed to address the effect on the market for rap derivatives, and confined themselves to uncontroverted submissions that there was no likely effect on the market for the original. They did not, however, thereby subject themselves to the evidentiary presumption applied by the Court of Appeals. In assessing the likelihood of significant market harm, the Court of Appeals *591 quoted from language in Sony that \"`[i]f the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.'\" 972 F. 2d, at 1438, quoting Sony, 464 U. S., at 451. The court reasoned that because \"the use of the copyrighted work is wholly commercial, . . . we presume that a likelihood of future harm to Acuff-Rose exists.\" 972 F. 2d, at 1438. In so doing, the court resolved the fourth factor against 2 Live Crew, just as it had the first, by applying a presumption about the effect of commercial use, a presumption which as applied here we hold to be error. No \"presumption\" or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes. Sony's discussion of a presumption contrasts a context of verbatim copying of the original in its entirety for commercial purposes, with the noncommercial context of Sony itself (home copying of television programming). In the former circumstances, what Sony said simply makes common sense: when a commercial use amounts to mere duplication of the entirety of an original, it clearly \"supersede[s] the objects,\" Folsom v. Marsh, supra, at 348, of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur. Sony, supra, at 451. But when, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred. Indeed, as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it (\"supersed[ing] [its] objects\"). See Leval 1125; Patry & Perlmutter 692, 697-698. This is so because the parody and the original usually serve different market functions. Bisceglia, ASCAP, Copyright Law Symposium, No. 34, at 23. We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing *592 theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because \"parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,\" B. Kaplan, An Unhurried View of Copyright 69 (1967), the role of the courts is to distinguish between \"[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.\" Fisher v. Dees, 794 F. 2d, at 438. This distinction between potentially remediable displacement and unremediable disparagement is reflected in the rule that there is no protectible derivative market for criticism. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market. \"People ask . . . for criticism, but they only want praise.\" S. Maugham, Of Human Bondage 241 (Penguin ed. 1992). Thus, to the extent that the opinion below may be read to have considered harm to the market for parodies of \"Oh, Pretty Woman,\" see 972 F. 2d, at 1439, the court erred. Accord, Fisher v. Dees, supra, at 437; Leval 1125; Patry & Perlmutter 688-691.[22] In explaining why the law recognizes no derivative market for critical works, including parody, we have, of course, been speaking of the later work as if it had nothing but a critical aspect (i. e., \"parody pure and simple,\" supra, at 591). But the later work may have a more complex character, with effects not only in the arena of criticism but also in protectible markets for derivative works, too. In that sort of case, the law looks beyond the criticism to the other elements of the work, as it does here. 2 Live Crew's song comprises not *593 only parody but also rap music, and the derivative market for rap music is a proper focus of enquiry, see Harper & Row, supra, at 568; Nimmer \u00a7 13.05[B]. Evidence of substantial harm to it would weigh against a finding of fair use,[23] because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U. S. C. \u00a7 106(2) (copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.[24] Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original, neither they, nor Acuff-Rose, introduced evidence or affidavits addressing the likely effect of 2 Live Crew's parodic rap song on the market for a nonparody, rap version of \"Oh, Pretty Woman.\" And while Acuff-Rose would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of \"Oh, Pretty Woman\" and another rap group sought a license to record a rap derivative, there was no evidence that a potential rap market was harmed in any way by 2 Live Crew's parody, rap version. The fact that 2 Live Crew's parody sold as part of a collection of rap songs says very little about the parody's effect on a market for a rap version of the original, either of the music alone or of the music with its lyrics. The District Court essentially passed *594 on this issue, observing that Acuff-Rose is free to record \"whatever version of the original it desires,\" 754 F. Supp., at 1158; the Court of Appeals went the other way by erroneous presumption. Contrary to each treatment, it is impossible to deal with the fourth factor except by recognizing that a silentrecord on an important factor bearing on fair use disentitled the proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary hole will doubtless be plugged on remand.\nIII It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of \"Oh, Pretty Woman\" rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.\nAPPENDIX A TO OPINION OF THE COURT \"Oh, Pretty Woman\" by Roy Orbison and William Dees Pretty Woman, walking down the street, Pretty Woman, the kind I like to meet, Pretty Woman, I don't believe you, you're not the truth, No one could look as good as you Mercy Pretty Woman, won't you pardon me, Pretty Woman, I couldn't help but see, *595 Pretty Woman, that you look lovely as can be Are you lonely just like me? Pretty Woman, stop a while, Pretty Woman, talk a while, Pretty Woman give your smile to me Pretty Woman, yeah, yeah, yeah Pretty Woman, look my way, Pretty Woman, say you'll stay with me 'Cause I need you, I'll treat you right Come to me baby, Be mine tonight Pretty Woman, don't walk on by, Pretty Woman, don't make me cry, Pretty Woman, don't walk away, Hey, O. K. If that's the way it must be, O. K. I guess I'll go on home, it's late There'll be tomorrow night, but wait! What do I see Is she walking back to me? Yeah, she's walking back to me! Oh, Pretty Woman.\nAPPENDIX B TO OPINION OF THE COURT \"Pretty Woman\" as Recorded by 2 Live Crew Pretty woman walkin' down the street Pretty woman girl you look so sweet Pretty woman you bring me down to that knee Pretty woman you make me wanna beg please Oh, pretty woman Big hairy woman you need to shave that stuff Big hairy woman you know I bet it's tough Big hairy woman all that hair it ain't legit *596 'Cause you look like `Cousin It' Big hairy woman Bald headed woman girl your hair won't grow Bald headed woman you got a teeny weeny afro Bald headed woman you know your hair could look nice Bald headed woman first you got to roll it with rice Bald headed woman here, let me get this hunk of biz for ya Ya know what I'm saying you look better than rice a roni Oh bald headed woman Big hairy woman come on in And don't forget your bald headed friend Hey pretty woman let the boys Jump in Two timin' woman girl you know you ain't right Two timin' woman you's out with my boy last night Two timin' woman that takes a load off my mind Two timin' woman now I know the baby ain't mine Oh, two timin' woman Oh pretty woman JUSTICE KENNEDY, concurring. I agree that remand is appropriate and join the opinion of the Court, with these further observations about the fair use analysis of parody. The common-law method instated by the fair use provision of the copyright statute, 17 U. S. C. \u00a7 107 (1988 ed. and Supp. IV), presumes that rules will emerge from the course of decisions. I agree that certain general principles are now discernible to define the fair use exception for parody. One of these rules, as the Court observes, is that parody may qualify as fair use regardless of whether it is published or performed *597 for profit. Ante, at 591. Another is that parody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition. Ante, at 580. It is not enough that the parody use the original in a humorous fashion, however creative that humor may be. The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well). See Rogers v. Koons, 960 F. 2d 301, 310 (CA2 1992) (\"[T]hough the satire need not be only of the copied work and may . . . also be a parody of modern society, the copied work must be, at least in part, an object of the parody\"); Fisher v. Dees, 794 F. 2d 432, 436 (CA9 1986) (\"[A] humorous or satiric work deserves protection under the fair-use doctrine only if the copied work is at least partly the target of the work in question\"). This prerequisite confines fair use protection to works whose very subject is the original composition and so necessitates some borrowing from it. See MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981) (\"[I]f the copyrighted song is not at least in part an object of the parody, there is no need to conjure it up\"); Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, pp. 23-29 (1987). It also protects works we have reason to fear will not be licensed by copyright holders who wish to shield their works from criticism. See Fisher, supra, at 437 (\"Self-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee\"); Posner, When Is Parody Fair Use?, 21 J. Legal Studies 67, 73 (1992) (\"There is an obstruction when the parodied work is a target of the parodist's criticism, for it may be in the private interest of the copyright owner, but not in the social interest, to suppress criticism of the work\") (emphasis deleted). If we keep the definition of parody within these limits, we have gone most of the way towards satisfying the four-factor *598 fair use test in \u00a7 107. The first factor (the purpose and character of use) itself concerns the definition of parody. The second factor (the nature of the copyrighted work) adds little to the first, since \"parodies almost invariably copy publicly known, expressive works.\" Ante, at 586. The third factor (the amount and substantiality of the portion used in relation to the whole) is likewise subsumed within the definition of parody. In determining whether an alleged parody has taken too much, the target of the parody is what gives content to the inquiry. Some parodies, by their nature, require substantial copying. See Elsmere Music, Inc. v. National Broadcasting Co., 623 F. 2d 252 (CA2 1980) (holding that \"I Love Sodom\" skit on \"Saturday Night Live\" is legitimate parody of the \"I Love New York\" campaign). Other parodies, like Lewis Carroll's \"You Are Old, Father William,\" need only take parts of the original composition. The third factor does reinforce the principle that courts should not accord fair use protection to profiteers who do no more than add a few silly words to someone else's song or place the characters from a familiar work in novel or eccentric poses. See, e. g., Walt Disney Productions v. Air Pirates, 581 F. 2d 751 (CA9 1978); DC Comics Inc. v. Unlimited Monkey Business, Inc., 598 F. Supp. 110 (ND Ga. 1984). But, as I believe the Court acknowledges, ante, at 588-589, it is by no means a test of mechanical application. In my view, it serves in effect to ensure compliance with the targeting requirement. As to the fourth factor (the effect of the use on the market for the original), the Court acknowledges that it is legitimate for parody to suppress demand for the original by its critical effect. Ante, at 591-592. What it may not do is usurp demand by its substitutive effect. Ibid. It will be difficult, of course, for courts to determine whether harm to the market results from a parody's critical or substitutive effects. But again, if we keep the definition of parody within appropriate bounds, this inquiry may be of little significance. If a work targets another for humorous or ironic effect, it is by definition *599 a new creative work. Creative works can compete with other creative works for the same market, even if their appeal is overlapping. Factor four thus underscores the importance of ensuring that the parody is in fact an independent creative work, which is why the parody must \"make some critical comment or statement about the original work which reflects the original perspective of the parodist\u2014thereby giving the parody social value beyond its entertainment function.\" Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F. Supp. 351, 357 (ND Ga. 1979). The fair use factors thus reinforce the importance of keeping the definition of parody within proper limits. More than arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. We should not make it easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the original. Almost any revamped modern version of a familiar composition can be construed as a \"comment on the naivete of the original,\" ante, at 583, because of the difference in style and because it will be amusing to hear how the old tune sounds in the new genre. Just the thought of a rap version of Beethoven's Fifth Symphony or \"Achy Breaky Heart\" is bound to make people smile. If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. And under-protection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create. The Court decides it is \"fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree.\" Ibid. (applying the first fair use factor). While I am not so assured that 2 Live Crew's song is a legitimate parody, the Court's treatment of *600 the remaining factors leaves room for the District Court to determine on remand that the song is not a fair use. As future courts apply our fair use analysis, they must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody. With these observations, I join the opinion of the Court. NOTES [*] Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Steven F. Reich, Steven R. Shapiro, Marjorie Heins, and John A. Powell; for Capitol Steps Production, Inc., et al. by William C. Lane; for the Harvard Lampoon, Inc., by Robert H. Loeffler and Jonathan Band; for the PEN American Center by Leon Friedman; and for Robert C. Berry et al. by Alfred C. Yen.\nBriefs of amici curiae urging affirmance were filed for the National Music Publishers' Association, Inc., et al. by Marvin E. Frankel and Michael S. Oberman; and for Fred Ebb et al. by Stephen Rackow Kaye, Charles S. Sims, and Jon A. Baumgarten. Briefs of amici curiae were filed for Home Box Office et al. by Daniel M. Waggoner, P. Cameron DeVore, George Vradenburg, Bonnie Bogin, and Richard Cotton; and for Warner Bros. by Cary H. Sherman and Robert Alan Garrett. [1] Rap has been defined as a \"style of black American popular music consisting of improvised rhymes performed to a rhythmic accompaniment.\" The Norton\/Grove Concise Encyclopedia of Music 613 (1988). 2 Live Crew plays \"[b]ass music,\" a regional, hip-hop style of rap from the Liberty City area of Miami, Florida. Brief for Petitioners 34. [2] The parties argue about the timing. 2 Live Crew contends that the album was released on July 15, and the District Court so held. 754 F. Supp. 1150, 1152 (MD Tenn. 1991). The Court of Appeals states that Campbell's affidavit puts the release date in June, and chooses that date. 972 F. 2d 1429, 1432 (CA6 1992). We find the timing of the request irrelevant for purposes of this enquiry. See n. 18, infra, discussing good faith. [3] 2 Live Crew's motion to dismiss was converted to a motion for summary judgment. Acuff-Rose defended against the motion, but filed no cross-motion. [4] Section 106 provides in part: \"Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: \"(1) to reproduce the copyrighted work in copies or phonorecords; \"(2) to prepare derivative works based upon the copyrighted work; \"(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending . . . .\" A derivative work is defined as one \"based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a `derivative work.' \" 17 U. S. C. \u00a7 101. 2 Live Crew concedes that it is not entitled to a compulsory license under \u00a7 115 because its arrangement changes \"the basic melody or fundamental character\" of the original. \u00a7 115(a)(2). [5] The exclusion of facts and ideas from copyright protection serves that goal as well. See \u00a7 102(b) (\"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery...\"); Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 359 (1991) (\"[F]acts contained in existing works may be freely copied\"); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 547 (1985) (copyright owner's rights exclude facts and ideas, and fair use). [6] An Act for the Encouragement of Learning, 8 Anne, ch. 19. [7] Patry 27, citing Lawrence v. Dana, 15 F. Cas. 26, 60 (No. 8,136) (CCD Mass. 1869). [8] Leval 1105. For a historical account of the development of the fair use doctrine, see Patry 1-64. [9] See Senate Report, p. 62 (\"[W]hether a use referred to in the first sentence of section 107 is a fair use in a particular case will depend upon the application of the determinative factors\"). [10] Because the fair use enquiry often requires close questions of judgment as to the extent of permissible borrowing in cases involving parodies (or other critical works), courts may also wish to bear in mind that the goals of the copyright law, \"to stimulate the creation and publication of edifying matter,\" Leval 1134, are not always best served by automatically granting injunctive relief when parodists are found to have gone beyond the bounds of fair use. See 17 U. S. C. \u00a7 502(a) (court \"may . . . grant . . . injunctions on such terms as it may deem reasonable to prevent or restrain infringement\") (emphasis added); Leval 1132 (while in the \"vast majority of cases, [an injunctive] remedy is justified because most infringements are simple piracy,\" such cases are \"worlds apart from many of those raising reasonable contentions of fair use\" where \"there may be a strong public interest in the publication of the secondary work [and] the copyright owner's interest may be adequately protected by an award of damages for whatever infringement is found\"); Abend v. MCA, Inc., 863 F. 2d 1465, 1479 (CA9 1988) (finding \"special circumstances\" that would cause \"great injustice\" to defendants and \"public injury\" were injunction to issue), aff'd sub nom. Stewart v. Abend, 495 U. S. 207 (1990). [11] The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution. [12] American Heritage Dictionary 1317 (3d ed. 1992). [13] 11 Oxford English Dictionary 247 (2d ed. 1989). [14] A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, at 590-594, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. [15] Satire has been defined as a work \"in which prevalent follies or vices are assailed with ridicule,\" 14 Oxford English Dictionary, supra, at 500, or are \"attacked through irony, derision, or wit,\" American Heritage Dictionary, supra, at 1604. [16] The only further judgment, indeed, that a court may pass on a work goes to an assessment of whether the parodic element is slight or great, and the copying small or extensive in relation to the parodic element, for a work with slight parodic element and extensive copying will be more likely to merely \"supersede the objects\" of the original. See infra, at 586-594, discussing factors three and four. [17] We note in passing that 2 Live Crew need not label their whole album, or even this song, a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this being its first parodic essay. Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived). See Patry & Perlmutter 716-717. [18] Finally, regardless of the weight one might place on the alleged infringer's state of mind, compare Harper & Row, 471 U. S., at 562 (fair use presupposes good faith and fair dealing) (quotation marks omitted), with Folsom v. Marsh, 9 F. Cas. 342, 349 (No. 4,901) (CCD Mass. 1841) (good faith does not bar a finding of infringement); Leval 1126-1127 (good faith irrelevant to fair use analysis), we reject Acuff-Rose's argument that 2 Live Crew's request for permission to use the original should be weighed against a finding of fair use. Even if good faith were central to fair use, 2 Live Crew's actions do not necessarily suggest that they believed their version was not fair use; the offer may simply have been made in a good-faith effort to avoid this litigation. If the use is otherwise fair, then no permission need be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use. See Fisher v. Dees, 794 F. 2d 432, 437 (CA9 1986). [19] This may serve to heighten the comic effect of the parody, as one witness stated, App. 32a, Affidavit of Oscar Brand; see also Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741, 747 (SDNY 1980) (repetition of \"I Love Sodom\"), or serve to dazzle with the original's music, as Acuff-Rose now contends. [20] Harper & Row, 471 U. S., at 561; H. R. Rep. No. 102-836, p. 3, n. 3 (1992). [21] Even favorable evidence, without more, is no guarantee of fairness. Judge Leval gives the example of the film producer's appropriation of a composer's previously unknown song that turns the song into a commercial success; the boon to the song does not make the film's simple copying fair. Leval 1124, n. 84. This factor, no less than the other three, may be addressed only through a \"sensitive balancing of interests.\" Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 455, n. 40 (1984). Market harm is a matter of degree, and the importance of this factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors. [22] We express no opinion as to the derivative markets for works using elements of an original as vehicles for satire or amusement, making no comment on the original or criticism of it. [23] See Nimmer \u00a7 13.05[A][4], p. 13-102.61 (\"a substantially adverse impact on the potential market\"); Leval 1125 (\"reasonably substantial\" harm); Patry & Perlmutter 697-698 (same). [24] In some cases it may be difficult to determine whence the harm flows. In such cases, the other fair use factors may provide some indicia of the likely source of the harm. A work whose overriding purpose and character is parodic and whose borrowing is slight in relation to its parody will be far less likely to cause cognizable harm than a work with little parodic content and much copying.","meta":{"dup_signals":{"dup_doc_count":1050,"dup_dump_count":99,"dup_details":{"2024-30":2,"2024-26":3,"2024-22":1,"2024-18":7,"2024-10":7,"2017-13":8,"2015-18":13,"2015-11":13,"2015-06":13,"2014-10":6,"2013-48":13,"2013-20":10,"2023-50":3,"2023-40":3,"2023-23":79,"2023-14":17,"2023-06":49,"2022-49":11,"2022-40":44,"2022-33":21,"2022-27":3,"2022-21":6,"2022-05":3,"2021-49":4,"2021-43":3,"2021-39":6,"2021-31":18,"2021-25":5,"2021-21":3,"2021-17":2,"2021-10":1,"2021-04":4,"2020-50":3,"2020-45":1,"2020-40":3,"2020-34":5,"2020-29":28,"2020-24":4,"2020-16":10,"2020-10":3,"2020-05":26,"2019-51":28,"2019-47":6,"2019-43":24,"2019-39":9,"2019-35":29,"2019-30":7,"2019-26":41,"2019-22":6,"2019-18":5,"2019-13":5,"2019-09":2,"2019-04":2,"2018-51":4,"2018-47":4,"2018-43":4,"2018-39":2,"2018-34":1,"2018-30":5,"2018-26":3,"2018-22":2,"2018-17":4,"2018-13":6,"2018-09":6,"2018-05":6,"2017-51":3,"2017-47":6,"2017-43":3,"2017-39":9,"2017-34":5,"2017-30":7,"2017-26":7,"2017-22":5,"2017-17":7,"2017-09":29,"2017-04":8,"2016-50":8,"2016-44":8,"2016-40":8,"2016-36":8,"2016-30":7,"2016-26":2,"2016-22":2,"2016-18":2,"2016-07":22,"2015-48":26,"2015-40":18,"2015-35":21,"2015-32":26,"2015-27":23,"2015-22":2,"2015-14":9,"2014-52":10,"2014-49":10,"2014-42":15,"2014-41":14,"2014-35":15,"2014-23":16,"2014-15":14}}},"subset":"freelaw"}
{"text":"351 U.S. 12 (1956) GRIFFIN ET AL. v. ILLINOIS. No. 95. Supreme Court of United States. Argued December 7, 1955. Decided April 23, 1956. CERTIORARI TO THE SUPREME COURT OF ILLINOIS. Charles A. Horsky, acting under appointment by the Court, 349 U.S. 949, argued the cause and filed a brief for petitioners. *13 William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief was Latham Castle, Attorney General. MR. JUSTICE BLACK announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE CLARK join. Illinois law provides that \"Writs of error in all criminal cases are writs of right and shall be issued of course.\"[1] The question presented here is whether Illinois may, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, administer this statute so as to deny adequate appellate review to the poor while granting such review to all others. The petitioners Griffin and Crenshaw were tried together and convicted of armed robbery in the Criminal Court of Cook County, Illinois. Immediately after their conviction they filed a motion in the trial court asking that a certified copy of the entire record, including a stenographic transcript of the proceedings, be furnished them without cost. They alleged that they were \"poor persons with no means of paying the necessary fees to acquire the Transcript and Court Records needed to prosecute an appeal . . . .\" These allegations were not denied. Under Illinois law in order to get full direct appellate review of alleged errors by a writ of error it is necessary for the defendant to furnish the appellate court with a bill of exceptions or report of proceedings at the trial certified by the trial judge.[2] As Illinois concedes, it is sometimes *14 impossible to prepare such bills of exceptions[3] or reports without a stenographic transcript of the trial proceedings.[4] Indigent defendants sentenced to death are provided with a free transcript at the expense of the county where convicted.[5] In all other criminal cases defendants needing a transcript, whether indigent or not, must themselves buy it. The petitioners contended in their motion before *15 the trial court that failure to provide them with the needed transcript would violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The trial court denied the motion without a hearing. Griffin and Crenshaw then filed a petition under the Illinois Post-Conviction Hearing Act.[6] Only questions arising under the Illinois or Federal Constitution may be raised in proceedings under this Act. A companion state act provides that indigent petitioners under the Post-Conviction Act may, under some circumstances, obtain a free transcript.[7] The effect is that indigents may obtain a free transcript to obtain appellate review of constitutional questions but not of other alleged trial errors such as admissibility and sufficiency of evidence. In their Post-Conviction proceeding petitioners alleged that there were manifest nonconstitutional errors in the trial which entitled them to have their convictions set aside on appeal and that the only impediment to full appellate review was their lack of funds to buy a transcript. These allegations have not been denied. Petitioners repeated their charge that refusal to afford full appellate review solely because of poverty was a denial of due process and equal protection. This petition like the first was dismissed without hearing any evidence. The Illinois Supreme Court affirmed the dismissal solely on the ground that the charges raised no substantial state or federal constitutional questions\u2014the only kind of questions which may *16 be raised in Post-Conviction proceedings. We granted certiorari. 349 U.S. 937. Counsel for Illinois concedes that these petitioners needed a transcript in order to get adequate appellate review of their alleged trial errors.[8] There is no contention that petitioners were dilatory in their efforts to get appellate review, or that the Illinois Supreme Court denied review on the ground that the allegations of trial error were insufficient. We must therefore assume for purposes of this decision that errors were committed in the trial which would merit reversal, but that the petitioners could not get appellate review of those errors solely because they were too poor to buy a stenographic transcript. Counsel for Illinois denies that this violates either the Due Process or the Equal Protection Clause, but states that if it does, the Illinois Post-Conviction statute entitles petitioners to a free transcript. The sole question for us to decide, therefore, is whether due process or equal protection has been violated.[9] Providing equal justice for poor and rich, weak and powerful alike is an age-old problem.[10] People have never ceased to hope and strive to move closer to that goal. This hope, at least in part, brought about in 1215 the royal concessions of Magna Charta: \"To no one will we sell, to no one will we refuse, or delay, right or justice.. . . No free man shall be taken or imprisoned, or *17 disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him nor send upon him, but by the lawful judgment of his peers or by the law of the land.\" These pledges were unquestionably steps toward a fairer and more nearly equal application of criminal justice. In this tradition, our own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system\u2014all people charged with crime must, so far as the law is concerned, \"stand on an equality before the bar of justice in every American court.\" Chambers v. Florida, 309 U.S. 227, 241. See also Yick Wo v. Hopkins, 118 U.S. 356, 369.[11] Surely no one would contend that either a State or the Federal Government could constitutionally provide that defendants unable to pay court costs in advance should be denied the right to plead not guilty or to defend themselves in court.[12] Such a law would make the constitutional promise of a fair trial a worthless thing. Notice, the right to be heard, and the right to counsel would under such circumstances be meaningless promises to the poor. In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color. Plainly the ability to pay costs in advance bears no rational relationship to a defendant's *18 guilt or innocence and could not be used as an excuse to deprive a defendant of a fair trial. Indeed, a provision in the Constitution of Illinois of 1818 provided that every person in Illinois \"ought to obtain right and justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.\"[13] There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance. It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. See, e. g., McKane v. Durston, 153 U.S. 684, 687-688. But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty. Appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant. Consequently at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like petitioners from invidious discriminations. See Cole v. Arkansas, 333 U.S. 196, 201; Dowd v. United States ex rel. Cook, 340 U.S. 206, 208; Cochran v. Kansas, 316 U.S. 255, 257; Frank v. Mangum, 237 U.S. 309, 327. All of the States now provide some method of appeal from criminal convictions, recognizing the importance of appellate review to a correct adjudication of guilt or innocence. Statistics show that a substantial proportion of criminal convictions are reversed by state appellate *19 courts.[14] Thus to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. Many States have recognized this and provided aid for convicted defendants who have a right to appeal and need a transcript but are unable to pay for it.[15] A few have not. Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in the administration of its criminal law.[16] There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts. The Illinois Supreme Court denied these petitioners relief under the Post-Conviction Act because of its holding that no constitutional rights were violated. In view of our holding to the contrary the State Supreme Court may decide that petitioners are now entitled to a transcript, as the State's brief suggests. See Ill. Rev. Stat., 1955, c. 37, \u00a7 163f. Cf. Dowd v. United States ex rel. Cook, 340 *20 U. S., at 209-210. We do not hold, however, that Illinois must purchase a stenographer's transcript in every case where a defendant cannot buy it. The Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants. For example, it may be that bystanders' bills of exceptions or other methods of reporting trial proceedings could be used in some cases.[17] The Illinois Supreme Court appears to have broad power to promulgate rules of procedure and appellate practice.[18] We are confident that the State will provide corrective rules to meet the problem which this case lays bare. The judgment of the Supreme Court of Illinois is vacated and the cause is remanded to that court for further action not inconsistent with the foregoing paragraph. MR. JUSTICE FRANKFURTER joins in this disposition of the case. Vacated and remanded. MR. JUSTICE FRANKFURTER, concurring in the judgment. The admonition of de Tocqueville not to confuse the familiar with the necessary has vivid application to appeals in criminal cases. The right to an appeal from a conviction for crime is today so established that this leads to the easy assumption that it is fundamental to the protection of life and liberty and therefore a necessary ingredient of due process of law. \"Due process\" is, perhaps, the least frozen concept of our law\u2014the least *21 confined to history and the most absorptive of powerful social standards of a progressive society. But neither the unfolding content of \"due process\" nor the particularized safeguards of the Bill of Rights disregard procedural ways that reflect a national historic policy. It is significant that no appeals from convictions in the federal courts were afforded (with roundabout exceptions negligible for present purposes) for nearly a hundred years; and, despite the civilized standards of criminal justice in modern England, there was no appeal from convictions (again with exceptions not now pertinent) until 1907. Thus, it is now settled that due process of law does not require a State to afford review of criminal judgments. Nor does the equal protection of the laws deny a State the right to make classifications in law when such classifications are rooted in reason. \"The equality at which the `equal protection' clause aims is not a disembodied equality. The Fourteenth Amendment enjoins `the equal protection of the laws,' and laws are not abstract propositions.\" Tigner v. Texas, 310 U.S. 141, 147. Since capital offenses are sui generis, a State may take account of the irrevocability of death by allowing appeals in capital cases and not in others. Again, \"the right of appeal may be accorded by the State to the accused upon such terms as in its wisdom may be deemed proper.\" McKane v. Durston, 153 U.S. 684, 687-688. The States have exercised this discriminating power. The different States and the same State from time to time have conditioned criminal appeals by fixing the time within which an appeal may be taken, by delimiting the scope of review, by shaping the mechanism by which alleged errors may be brought before the appellate tribunal, and so forth. But neither the fact that a State may deny the right of appeal altogether nor the right of a State to make an appropriate classification, based on differences in crimes and their punishment, nor the right of a State to lay down *22 conditions it deems appropriate for criminal appeals, sanctions differentiations by a State that have no relation to a rational policy of criminal appeal or authorizes the imposition of conditions that offend the deepest presuppositions of our society. Surely it would not need argument to conclude that a State could not, within its wide scope of discretion in these matters, allow an appeal for persons convicted of crimes punishable by imprisonment of a year or more, only on payment of a fee of $500. Illinois, of course, has done nothing so crude as that. But Illinois has said, in effect, that the Supreme Court of Illinois can consider alleged errors occurring in a criminal trial only if the basis for determining whether there were errors is brought before it by a bill of exceptions and not otherwise.[*] From this it follows that Illinois has decreed that only defendants who can afford to pay for the stenographic minutes of a trial may have trial errors reviewed on appeal by the Illinois Supreme Court. (See People v. LaFrana, 4 Ill. 2d 261, *23 266, 122 N.E.2d 583, 585-586.) It has thereby shut off means of appellate review for indigent defendants. This Court would have to be willfully blind not to know that there have in the past been prejudicial trial errors which called for reversal of convictions of indigent defendants, and that the number of those who have not had the means for paying for the cost of a bill of exceptions is not so negligible as to invoke whatever truth there may be in the maxim de minimis. Law addresses itself to actualities. It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course a State need not equalize economic conditions. A man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor man's purse. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion. But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed. To sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by a State, would justify a latter-day Anatole France to add one more item to his ironic comments on the \"majestic equality\" of the law. \"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.\" (John Cournos, A Modern Plutarch, p. 27.) *24 The State is not free to produce such a squalid discrimination. If it has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity. The State cannot keep the word of promise to the ear of those illegally convicted and break it to their hope. But in order to avoid or minimize abuse and waste, a State may appropriately hedge about the opportunity to prove a conviction wrong. When a State not only gives leave for appellate correction of trial errors but must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent. The growing experience of reforms in appellate procedure and sensible, economic modes for securing review still to be devised, may be drawn upon to the end that the State will neither bolt the door to equal justice nor support a wasteful abuse of the appellate process. It follows that the petitioners must be accorded an appeal from their conviction, either by having the State furnish them a transcript of the proceedings in the trial court, or by any other means, of which we have not been advised, that may be available under Illinois law, so that the errors of which they complain can effectively be brought for review to the Illinois Supreme Court. It is not for us to tell Illinois what means are open to the indigent and must be chosen. Illinois may prescribe any means that are within the wide area of its constitutional discretion. The case of these petitioners is that the only adequate means of bringing for review allegedly fatal trial defects resulting in a potentially reversible conviction was a bill of exceptions which their poverty precluded them from securing. The order of the Illinois Supreme Court and the argument of the Attorney General of Illinois in support of that court's judgment apparently assumed that that was the case. Considering the nature of the issue *25 thus raised by petitioners appearing for themselves, it would savor of disrespect to the Supreme Court of Illinois for us to find an implication in its unqualified rejection of the claims of the petitioners that an effective review other than by bill of exceptions could be had in the present situation. Cf. Diaz v. Gonzalez, 261 U.S. 102, 105-106. When the case again reaches the Illinois Supreme Court, that court may, of course, find within the existing resources of Illinois law means of according to petitioners effective satisfaction of their constitutional right not to be denied the equal protection of the laws. We must be mindful of the fact that there are undoubtedly convicts under confinement in Illinois prisons, in numbers unknown to us and under unappealed sentences imposed years ago, who will find justification in this opinion, unless properly qualified, for proceedings both in the state and the federal courts upon claims that they are under illegal detention in that they have been denied a right under the Federal Constitution. It would be an easy answer that a claim that was not duly asserted\u2014as was the timely claim by these petitioners\u2014cannot be asserted now. The answer is too easy. Candor compels acknowledgement that the decision rendered today is a new ruling. Candor compels the further acknowledgement that it would not be unreasonable for all indigent defendants, now incarcerated, who at the time were unable to pay for transcripts of proceedings in trial courts, to urge that they were justified in assuming that such a restriction upon criminal appeals in Illinois was presumably a valid exercise of the State's power at the time when they suffered its consequences. Therefore it could well be claimed that thereby any conscious waiver of a constitutional right is negatived. The Court ought neither to rely on casuistic arguments in denying constitutional claims, nor deem itself imprisoned within a formal, abstract dilemma. The judicial *26 choice is not limited to a new ruling necessarily retrospective, or to rejection of what the requirements of equal protection of the laws, as now perceived, require. For sound reasons, law generally speaks prospectively. More than a hundred years ago, for instance, the Supreme Court of Ohio, confronted with a problem not unlike the one before us, found no difficulty in doing so when it concluded that legislative divorces were unconstitutional. Bingham v. Miller, 17 Ohio 445. In arriving at a new principle, the judicial process is not impotent to define its scope and limits. Adjudication is not a mechanical exercise nor does it compel \"either\/or\" determinations. We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights. It is much more conducive to law's self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of law. That this is consonant with the spirit of our law and justified by those considerations of reason which should dominate the law, has been luminously expounded by Mr. Justice Cardozo, shortly before he came here and in an opinion which he wrote for the Court. See Address of Chief Judge Cardozo, 55 Report of New York State Bar Assn., 263, 294 et seq., and Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 363-366. Such a molding of law, by way of adjudication, is peculiarly applicable to the problem at hand. The rule of law announced this day should be delimited as indicated. MR. JUSTICE BURTON and MR. JUSTICE MINTON, whom MR. JUSTICE REED and MR. JUSTICE HARLAN join, dissenting. While we do not disagree with the desirability of the policy of supplying an indigent defendant with a free transcript of testimony in a case like this, we do not agree *27 that the Constitution of the United States compels each State to do so with the consequence that, regardless of the State's legislation and practice to the contrary, this Court must hold invalid state appellate proceedings wherever a required transcript has not been provided without cost to an indigent litigant who has requested that it be so provided. It is one thing for Congress and this Court to prescribe such procedure for the federal courts. It is quite another for this Court to hold that the Constitution of the United States has prescribed it for all state courts. In the administration of local law the Constitution has been interpreted as permitting the several States generally to follow their own familiar procedure and practice. In so doing this Court has recognized the widely differing but locally approved procedures of the several States. Whether approving of the particular procedures or not, this Court has treated them largely as matters reserved to the States and within the broad range of permissible \"due process\" in a constitutional sense. Illinois, as the majority admit, could thus deny an appeal altogether in a criminal case without denying due process of law. McKane v. Durston, 153 U.S. 684. To allow an appeal at all, but with some difference among convicted persons as to the terms upon which an appeal is exercised, does not deny due process. It may present a question of equal protection. The petitioners urge that point here. Whether the Illinois statute denies equal protection depends upon whether, first, it is an arbitrary and unreasonable distinction for the legislature to make, between those convicted of a capital offense and those convicted of a lesser offense, as to their right to a free transcript. It seems to us the whole practice of criminal law teaches that there are valid distinctions between the ways in which criminal cases may be looked upon and treated *28 without violating the Constitution. Very often we have cases where the convicted seek only to avoid the death penalty. As all practicing lawyers know, who have defended persons charged with capital offenses, often the only goal possible is to avoid the death penalty. There is something pretty final about a death sentence. If the actual practice of law recognizes this distinction between capital and noncapital cases, we see no reason why the legislature of a State may not extend the full benefit of appeal to those convicted of capital offenses and deny it to those convicted of lesser offenses. It is the universal experience in the administration of criminal justice that those charged with capital offenses are granted special considerations. Examples of such will readily occur. All States allow a larger number of peremptory challenges of jurors in capital cases than in other cases. Most States permit changes of venue in capital cases on different terms than in other criminal cases. Some States require a verdict of 12 jurors for conviction in a capital case but allow less than 12 jurors to convict in noncapital cases. On the other side of the coin, most States provide no statute of limitations in capital cases. We think the distinction here made by the Illinois statute between capital cases and noncapital cases is a reasonable and valid one. Secondly, certainly Illinois does not deny equal protection to convicted defendants when the terms of appeal are open to all, although some may not be able to avail themselves of the full appeal because of their poverty. Illinois is not bound to make the defendants economically equal before its bar of justice. For a State to do so may be a desirable social policy, but what may be a good legislative policy for a State is not necessarily required by the Constitution of the United States. Persons charged with crimes stand before the law with varying degrees of economic and social advantage. Some can afford better *29 lawyers and better investigations of their cases. Some can afford bail, some cannot. Why fix bail at any reasonable sum if a poor man can't make it? The Constitution requires the equal protection of the law, but it does not require the States to provide equal financial means for all defendants to avail themselves of such laws. MR. JUSTICE BLACK'S opinion is not limited to the future. It holds that a past as well as a future conviction of crime in a state court is invalid where the State has failed to furnish a free transcript to an indigent defendant who has sought, as petitioner did here, to obtain a review of a ruling that was dependent upon the evidence in his case. This is an interference with state power for what may be a desirable result, but which we believe to be within the field of local option. Whether Illinois would permit appeals adequate to pass upon alleged errors on bills of exception, prepared by counsel and approved by judges, without requiring that full stenographic notes be transcribed is not before us. We assume that it would. MR. JUSTICE HARLAN, dissenting. Much as I would prefer to see free transcripts furnished to indigent defendants in all felony cases, I find myself unable to join in the Court's holding that the Fourteenth Amendment requires a State to do so or to furnish indigents with equivalent means of exercising a right to appeal. The importance of the question decided by the Court justifies adding to what MR. JUSTICE BURTON and MR. JUSTICE MINTON have written my further grounds for dissenting and the reasons why I find the majority opinions unsatisfying. 1. Inadequacy of the Record.\u2014I would decline to decide the constitutional question tendered by petitioners because the record does not present it in that \"clean-cut,\" *30 \"concrete,\" and \"unclouded\" form usually demanded for a decision of constitutional issues. Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 584. In my judgment the case should be remanded to the Illinois courts for further proceedings so that we might know the precise nature of petitioners' claim before passing on it. The record contains nothing more definite than the allegation that \"petitioners are poor persons with no means of paying the necessary fees to acquire the Transcript and Court Records needed to prosecute an appeal from their convictions.\" For my part I cannot tell whether petitioners' claim is that a transcript was \"needed\" because (a) under Illinois law a transcript is a prerequisite to appellate review of trial errors,[1] or (b) as a factual matter petitioners could not prepare an adequate bill of exceptions short of having a transcript. If the claim is that a transcript was legally necessary, it is based on an erroneous view of Illinois law. The Illinois cases cited by the petitioners establish only that trial errors cannot be reviewed in the absence of a bill of exceptions, and not that a transcript is essential to the preparation of such a bill.[2] To the contrary, an *31 unbroken line of Illinois cases establishes that a bill of exceptions may consist simply of a narrative account of the trial proceedings prepared from any available sources\u2014for example, from the notes or memory of the trial judge, counsel, the defendant, or bystanders\u2014and that the trial judge must either certify such a bill as accurate or point out the corrections to be made.[3] Viewed in the light of these cases, the only constitutional question *32 presented by petitioners' bare allegation that they were unable to purchase a transcript would be: Is an indigent defendant, who has not shown that he is unable to obtain full appellate review of his conviction by a narrative bill of exceptions, constitutionally entitled to the added advantage of a free transcript of the trial proceedings for use as a bill of exceptions? I need hardly pause to suggest that such a claim would present no substantial constitutional question. The Court, however, either takes judicial notice that as a practical matter the alternative methods of preparing a bill of exceptions are inadequate or finds in petitioners' claims an allegation of fact that their circumstances were such as to prevent them from utilizing the alternative methods. But even accepting this reading of the pleadings, the constitutional question tendered should not be decided without knowing the circumstances underlying the conclusory allegation of \"need.\" Petitioners' indigence, the only underlying \"fact\" alleged, did not in itself necessarily preclude them from preparing a narrative bill of exceptions, and we are told nothing as to the other circumstances which prevented them from doing so. The record does not even disclose whether petitioners were incarcerated during the period in which the bill of exceptions had to be filed, or whether they were represented by counsel at the trial. We are left to speculate on the nature of the alleged trial errors and the scope of the bill of exceptions needed to present them. Who can say that if we knew the facts we might not have before us a much narrower constitutional question than the one decided today, or perhaps no such question at all. In these circumstances, I would follow the salutary policy \"of avoiding constitutional decisions until the issues are presented with clarity, precision and certainty,\" Rescue Army v. Municipal Court of Los Angeles, supra, at p. 576, and would refuse to decide the *33 constitutional question in the abstract form in which it has been presented here. According to petitioners' tabulation, no more than 29 States provide free transcripts as of right to indigents convicted of non-capital crimes. Thus the sweeping constitutional pronouncement made by the Court today will touch the laws of at least 19 States[4] and will create a host of problems affecting the status of an unknown multitude of indigent convicts. A decision having such wide impact should not be made upon a record as obscure as this, especially where there are means ready at hand to have clarified the issue sought to be presented. However, since I stand alone in my view that the Court should refrain from deciding the broad question urged upon us until the necessity for such a decision becomes manifest, I deem it appropriate also to note my disagreement with the Court's decision of that question. Inasmuch as the Court's decision is not\u2014and on this record cannot be\u2014based on any facts peculiar to this case, I consider that question to be: Is an indigent defendant *34 who \"needs\" a transcript in order to appeal constitutionally entitled, regardless of the nature of the circumstances producing that need, to have the State either furnish a free transcript or take some other action to assure that he does in fact obtain full appellate review? 2. Equal Protection.\u2014In finding an answer to that question in the Equal Protection Clause, the Court has painted with a broad brush. It is said that a State cannot discriminate between the \"rich\" and the \"poor\" in its system of criminal appeals. That statement of course commands support, but it hardly sheds light on the true character of the problem confronting us here. Illinois has not imposed any arbitrary conditions upon the exercise of the right of appeal nor any requirements unnecessary to the effective working of its appellate system. Trial errors cannot be reviewed without an appropriate record of the proceedings below; if a transcript is used, it is surely not unreasonable to require the appellant to bear its cost; and Illinois has not foreclosed any other feasible means of preparing such a record. Nor is this a case where the State's own action has prevented a defendant from appealing. Cf. Dowd v. United States ex rel. Cook, 340 U.S. 206; Cochran v. Kansas, 316 U.S. 255. All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action. The Court thus holds that, at least in this area of criminal appeals, the Equal Protection Clause imposes on the States an affirmative duty to life the handicaps flowing from differences in economic circumstances. That holding produces the anomalous result that a constitutional admonition to the States to treat all persons equally means in this instance that Illinois must give to some what it requires others to pay for. Granting that such a classification would be reasonable, it does not follow that a State's failure to make it can be regarded as discrimination. *35 It may as accurately be said that the real issue in this case is not whether Illinois has discriminated but whether it has a duty to discriminate. I do not understand the Court to dispute either the necessity for a bill of exceptions or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party. The Court finds in the operation of these requirements, however, an invidious classification between the \"rich\" and the \"poor.\" But no economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against \"indigents\" by name would be unconstitutional. Thus, while the exclusion of \"indigents\" from a free state university would deny them equal protection, requiring the payment of tuition fees surely would not, despite the resulting exclusion of those who could not afford to pay the fees. And if imposing a condition of payment is not the equivalent of a classification by the State in one case, I fail to see why it should be so regarded in another. Thus if requiring defendants in felony cases to pay for a transcript constitutes a discriminatory denial to indigents of the right of appeal available to others, why is it not a similar denial in misdemeanor cases or, for that matter, civil cases? It is no answer to say that equal protection is not an absolute, and that in other than criminal cases the differentiation is \"reasonable.\" The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences. Hence it must be that the differences are \"reasonable\" in other cases not because the \"classification\" is reasonable but simply because it is not unreasonable in those cases for the State to fail to relieve indigents of the economic burden. That is, the issue here *36 is not the typical equal protection question of the reasonableness of a \"classification\" on the basis of which the State has imposed legal disabilities, but rather the reasonableness of the State's failure to remove natural disabilities. The Court holds that the failure of the State to do so is constitutionally unreasonable in this case although it might not be in others. I submit that the basis for that holding is simply an unarticulated conclusion that it violates \"fundamental fairness\" for a State which provides for appellate review, and thus apparently considers such review necessary to assure justice, not to see to it that such appeals are in fact available to those it would imprison for serious crimes. That of course is the traditional language of due process, see Betts v. Brady, 316 U.S. 455, 462, and I see no reason to import new substance into the concept of equal protection to dispose of the case, especially when to do so gives rise to the all-too-easy opportunity to ignore the real issue and solve the problem simply by labeling the Illinois practice as invidious \"discrimination.\" 3. Due Process.\u2014Has there been a violation of the Due Process Clause? The majority of the Court concedes that the Fourteenth Amendment does not require the States to provide for any kind of appellate review. Nevertheless, Illinois, in the forefront among the States, established writs of error in criminal cases as early as 1827.[5] In 1887, it provided for official court reporters, thereby relieving defendants of the burden of hiring reporters in order to obtain a transcript.[6] In 1927, it provided that for indigents sentenced to death \"all necessary costs and expenses\" incident to a writ of error, including the cost of a transcript, would be paid by *37 the counties.[7] And in 1953, free transcripts were authorized for the presentation of constitutional claims.[8] Thus Illinois has steadily expanded the protection afforded defendants in criminal cases, and in recent years has made substantial strides towards alleviating the natural disadvantages of indigents. Can it be that, while it was not unconstitutional for Illinois to afford no appeals, its steady progress in increasing the safeguards against erroneous convictions has resulted in a constitutional decline? Of course the fact that appeals are not constitutionally required does not mean that a State is free of constitutional restraints in establishing the terms upon which appeals will be allowed. It does mean, however, that there is no \"right\" to an appeal in the same sense that there is a right to a trial.[9] Rather the constitutional right under the Due Process Clause is simply the right not to be denied an appeal for arbitrary or capricious reasons. Nothing of that kind, however, can be found in any of the steps by which Illinois has established its appellate system. We are all agreed that no objection of substance can be made to the provisions for free transcripts in capital and constitutional cases. The due process challenge must therefore be directed to the basic step of permitting appeals at all without also providing an in forma pauperis procedure. But whatever else may be said of Illinois' reluctance to expend public funds in perfecting appeals for indigents, it can hardly be said to be arbitrary. A policy of economy may be unenlightened, but it is certainly *38 not capricious. And that it has never generally been so regarded is evidenced by the fact that our attention has been called to no State in which in forma pauperis appeals were established contemporaneously with the right of appeal. I can find nothing in the past decisions of this Court justifying a holding that the Fourteenth Amendment confines the States to a choice between allowing no appeals at all or undertaking to bear the cost of appeals for indigents, which is what the Court in effect now holds. It is argued finally that, even if it cannot be said to be \"arbitrary,\" the failure of Illinois to provide petitioners with the means of exercising the right of appeal that others are able to exercise is simply so \"unfair\" as to be a denial of due process. I have some question whether the non-arbitrary denial of a right that the State may withhold altogether could ever be so characterized. In any event, however, to so hold it is not enough that we consider free transcripts for indigents to be a desirable policy or that we would weigh the competing social values in favor of such a policy were it our function to distribute Illinois' public funds among alternative uses. Rather the question is whether some method of assuring that an indigent is able to exercise his right of appeal is \"implicit in the concept of ordered liberty,\" Palko v. Connecticut, 302 U.S. 319, 325, so that the failure of a State so to provide constitutes a \"denial of fundamental fairness, shocking to the universal sense of justice,\" Betts v. Brady, supra, at 462. Such an equivalence between persons in the means with which to exercise a right of appeal has not, however, traditionally been regarded as an essential of \"fundamental fairness,\" and the reforms extending such aid to indigents have only recently gained widespread acceptance. Indeed, it was not until an Act of Congress in 1944 that defendants in federal criminal *39 cases became entitled to free transcripts,[10] and to date approximately one-third of the States still have not taken that step. With due regard for the constitutional limitations upon the power of this Court to intervene in State matters, I am unable to bring myself to say that Illinois' failure to furnish free transcripts to indigents in all criminal cases is \"shocking to the universal sense of justice.\" As I view this case, it contains none of the elements hitherto regarded as essential to justify action by this Court under the Fourteenth Amendment. In truth what we have here is but the failure of Illinois to adopt as promptly as other States a desirable reform in its criminal procedure. Whatever might be said were this a question of procedure in the federal courts, regard for our system of federalism requires that matters such as this be left to the States. However strong may be one's inclination to hasten the day when in forma pauperis criminal procedures will be universal among the States, I think it is beyond the province of this Court to tell Illinois that it must provide such procedures. NOTES [1] Ill. Rev. Stat., 1955, c. 38, \u00a7 769.1. [2] Ill. Rev. Stat., 1953, c. 110, \u00a7 259.70A (Supreme Court Rule 70A), now Ill. Rev. Stat., 1955, c. 110, \u00a7 101.65 (Supreme Court Rule 65). A writ of error may also be prosecuted on a \"mandatory record\" kept by the clerk, consisting of the indictment, arraignment, plea, verdict and sentence. The \"mandatory record\" can be obtained free of charge by an indigent defendant. In such instances review is limited to errors on the face of the mandatory record, and there is no review of trial errors such as an erroneous ruling on the admission of evidence. See People v. Loftus, 400 Ill. 432, 81 N.E.2d 495. See also Cullen v. Stevens, 389 Ill. 35, 58 N.E.2d 456; A study of the Illinois Supreme Court, 15 U. of Chi. L. Rev. 107, 125. [3] \"A complete bill of exceptions consists of all proceedings in the case from the time of the convening of the court until the termination of the trial. It includes all of the motions and rulings of the trial court, evidence heard, instructions and other matters which do not come within the clerk's mandatory record.\" People ex rel. Iasello v. McKinlay, 409 Ill. 120, 124-125, 98 N.E.2d 728, 730. [4] In oral argument counsel for Illinois stated: \"With respect to the so-called bystanders' bill of exceptions or the bill of exceptions prepared from someone's memory in condensed and narrative form and certified to by the trial judge\u2014as to whether that's available in Illinois I can say that everybody out there understands that it is but nobody has heard of its ever being actually used in a criminal case in Illinois in recent years. I think if you went back before the days of court reporting you would find them but none today. And I will say that Illinois has not suggested in the brief that such a narrative transcript would necessarily or even generally be the equivalent of a verbatim transcript of all of the trial. ..... \"There isn't any way that an Illinois convicted person in a non-capital case can obtain a bill of exceptions without paying for it.\" See People v. Yetter, 386 Ill. 594, 54 N.E.2d 532; People v. Johns, 388 Ill. 212, 57 N.E.2d 895; Jennings v. Illinois, 342 U.S. 104, 109-110, on remand, 411 Ill. 21, 23, 25, 27, 102 N.E.2d 824, 825-827; People v. Joyce, 1 Ill. 2d 225, 230, 115 N.E.2d 262, 264-265; People v. La Frana, 4 Ill. 2d 261, 266, 122 N.E.2d 583, 585-586; People ex rel. Iasello v. McKinlay, 409 Ill. 120, 98 N.E.2d 728; People v. O'Connell, 411 Ill. 591, 104 N.E.2d 825. [5] Ill. Rev. Stat., 1955, c. 38, \u00a7 769a. [6] Ill. Rev. Stat., 1955, c. 38, \u00a7\u00a7 826-832. [7] Ill. Rev. Stat., 1955, c. 37, \u00a7 163f. This section provides in part that \"In any case arising under [the Post-Conviction Hearing Act] in which the presiding judge has determined that the post-conviction petition is sufficient to require an answer, it shall be the duty of the official court reporter to transcribe, in whole or in part, his stenographic notes of the evidence introduced at the trial in which the petitioner was convicted, if instructed so to do by the State's Attorney or by the court.\" [8] See note 4, supra, and cases there cited. [9] A dissenting opinion argues that the constitutional question is narrower because petitioners alleged that a transcript was needed rather than required. The State made no such claim and all the briefs and arguments on both sides together with the opinion of the Illinois Supreme Court treated the sole question as being as we have stated it. [10] \"Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbor.\" Leviticus, c. 19, v. 15. [11] Dissenting opinions here argue that the Illinois law should be upheld since by its terms it applies to rich and poor alike. But a law nondiscriminatory on its face may be grossly discriminatory in its operation. For example, this Court struck down the so-called \"grandfather clause\" of the Oklahoma Constitution as discriminatory against Negroes although that clause was by its terms nondiscriminatory. Guinn v. United States, 238 U.S. 347. See also Lane v. Wilson, 307 U.S. 268. [12] See discussion in Hovey v. Elliott, 167 U.S. 409. [13] Ill. Constitution of 1818, Art. VIII, \u00a7 12. Substantially the same provision has been carried over into the present Illinois Constitution, Art. II, \u00a7 19. [14] See Note, Reversals in Illinois Criminal Cases, 42 Harv. L. Rev. 566. [15] See, e. g., Ariz. Code Ann., 1939, \u00a7 44-2525; Ark. Stat., 1947, \u00a7 22-357; Page's Ohio Rev. Code Ann., 1954, \u00a7 2301.24; S. C. Code, 1952, \u00a7 15-1903; McKinney's N. Y. Laws, Crim. Code, 1945 (Supp. 1955), \u00a7 456. See also Note, 100 A. L. R. 321. [16] The Criminal Court of Appeals in Oklahoma in 1913 spoke in the tradition of this country's dedication to due process and equal protection when it declared that the law is no respecter of persons and said: \"We want the people of Oklahoma to understand, one and all, that the poorest and most unpopular person in the state . . . can depend upon it that justice is not for sale in Oklahoma, and that no one can be deprived of his right of appeal simply because he is unable to pay a stenographer to extend the notes of the testimony.\" Jeffries v. State, 9 Okla. Crim. 573, 576, 132 P. 823, 824. [17] See Weatherford v. Wilson, 3 Ill. (2 Scam.) 253 (1840); People ex rel. Maher v. Williams, 91 Ill. 87 (1878); People ex rel. Hall v. Holdom, 193 Ill. 319, 61 N.E. 1014 (1901); People v. Joyce, 1 Ill. 2d 225, 230, 115 N.E.2d 262, 264-265 (1953); Miller v. United States, 317 U.S. 192 (1942); Note, 15 Ann. Cas. 737. [18] Ill. Rev. Stat., 1955, c. 110, \u00a7 2; Ill. Rev. Stat., 1955, c. 110, \u00a7 101.65 (Supreme Court Rule 65); People v. Callopy, 358 Ill. 11, 192 N.E. 634. [*] \"The record in the trial court may consist only of the mandatory record, viz., indictment, arraignment, plea, trial and judgment. . . . This appears in the clerk's record in every case . . . . The record may include also a bill of exceptions, which consists of all of the motions and rulings of the trial court, evidence heard, instructions, and other matters which do not come directly within the clerk's mandatory record. This may be only a part of the record on review when a bill of exceptions is prayed and allowed, and certified by the court. . . . Therefore, when the review is had upon the common-law record, the sole matter only that may be considered by the court is error appearing upon the face of the record, and matters may not be added by argument, affidavit, or otherwise, to supply or expand the record. The case must stand or fall upon the errors appearing in the record. Of course, where there is a bill of exceptions, which includes motions, evidence, rulings on evidence, instructions, and the like, and such bill of exceptions is made a part of the record, errors may be reached by the remedy of writ of error. . . .\" People v. Loftus, 400 Ill. 432, 433-434, 81 N.E.2d 495, 497-498. [1] The Illinois Supreme Court may have interpreted the pleadings in this manner. It described the petitioners' \"sole contention\" as being that they were \"unable to purchase a bill of exceptions and were, therefore, unable to obtain a complete review by this Court.\" This suggests that the state court construed the claim to be that an appeal was necessarily precluded by the lack of a transcript, not that the petitioners' particular circumstances produced that result. If that is what the Illinois court meant, its construction, having a reasonable basis, would be binding on this Court and would constitute an adequate state ground for the denial of any claim premised on the existence of particular circumstances preventing the petitioners from pursuing other available methods of review. [2] E. g., People v. Johns, 388 Ill. 212, 57 N.E.2d 895; People v. Loftus, 400 Ill. 432, 81 N.E.2d 495; People v. O'Connell, 411 Ill. 591, 104 N.E.2d 825. [3] Weatherford v. Wilson, 3 Ill. (2 Scam.) 253 (1840); People ex rel. Maher v. Williams, 91 Ill. 87 (1878); People ex rel. Munson v. Gary, 105 Ill. 264 (1883); People ex rel. Hall v. Holdom, 193 Ill. 319, 61 N.E. 1014 (1901); 162 East Ohio Street Hotel Corp. v. Lindheimer, 368 Ill. 294, 13 N.E.2d 970 (1938); Weber v. Sneeringer, 247 Ill. App. 294 (1928); Merkle v. Kegerreis, 350 Ill. App. 103, 112 N.E.2d 175 (1953); see also People ex rel. North American Restaurant v. Chetlain, 219 Ill. 248, 76 N.E. 364 (1906); Mayville v. French, 246 Ill. 434, 92 N.E. 919 (1910); People ex rel. Simus v. Donoghue, 377 Ill. 122, 35 N.E.2d 371 (1941). This line of cases was reaffirmed by the Illinois Supreme Court in 1953, just three months before the petitioners were convicted, in People v. Joyce, 1 Ill. 2d 225, 230, 115 N.E.2d 262, 264-265, in which the Williams, Gary, Holdom and Lindheimer cases, supra, were cited with approval for the proposition that trial errors may be presented on a writ of error by a \"constructed or `bystander's' bill of exceptions.\" The holding of that case was that a defendant to whom these alternative methods were not available \"as a practical matter\" because of his indigence and incarceration did not, by failing to seek direct review of his conviction, \"waive\" the right given him by the Illinois Post-Conviction Hearing Act to assert his constitutional claims in a collateral proceeding. Accord: People v. La Frana, 4 Ill. 2d 261, 266, 122 N.E.2d 583, 585-586. That holding does not, of course, detract from the court's affirmation that a transcript is not legally required for appellate review of trial errors. It is equally clear that Illinois' recognition of \"practicalities\" in not applying a strict doctrine of waiver to the remedial Post-Conviction Hearing Act does not necessarily mean that the alternative methods of obtaining review are not sufficiently \"available\" to satisfy any supposed constitutional requirements. That question would depend upon the facts of the particular case\u2014of which we have not been informed here\u2014and upon the evaluation of them for constitutional purposes. [4] Of these 19 at least 5 have, however, expressly given the trial courts discretionary power to order free transcripts in non-capital cases. Mass. Ann. Laws, c. 278, \u00a7 33A, as amended by Acts 1955, c. 352 (\"by order of the court\"); N. D. Rev. Code, 1943, \u00a7 27-0606 (when \"there is reasonable cause therefor\"); Ore. Rev. Stat., 1953, \u00a7 21.470 (if \"justice will be thereby promoted\"); S. D. Code, 1939, \u00a7 34.3903 (if \"essential to the protection of the substantial rights of the defendant\"); Wash. Rev. Code, 1951, \u00a7 2.32.240 (if \"justice will thereby be promoted\"). The Rhode Island Supreme Court has reached a similar result by interpretation of a statute authorizing reimbursement for expenditures of appointed counsel. State v. Hudson, 55 Rawle I. 141, 179 A. 130 (1935) (\"sound discretion. . . to be exercised with great circumspection and only for serious cause\"). In addition, petitioners' brief refers to a letter from the Chief Justice of the Connecticut Supreme Court of Errors which states that free transcripts may be furnished in the discretion of the court in non-capital cases. [5] Ill. Rev. L. 1827, Crim. Code, \u00a7\u00a7 186, 187; Ill. Rev. Stat., 1955, c. 38, \u00a7 769.1. [6] Ill. Laws 1887, p. 159; Ill. Rev. Stat., 1955, c. 37, \u00a7 163b. [7] Ill. Laws 1927, p. 400, \u00a7 1 1\/2; Ill. Rev. Stat., 1955, c. 38, \u00a7 769a. [8] Ill. Laws 1953, p. 859; Ill. Rev. Stat., 1955, c. 37, \u00a7 163f. [9] This difference makes of dubious validity any analogy between a condition imposed upon the right to defend oneself and a condition imposed upon the right to appeal. [10] 58 Stat. 5, 28 U.S. C. \u00a7\u00a7 753 (f), 1915 (a). On the prior federal practice, see, e. g., Estabrook v. King, 119 F.2d 607, 610 (C.A. 8th Cir.); United States v. Fair, 235 F. 1015 (D. C. N. D. 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{"text":"505 U.S. 577 (1992) LEE et al. v. WEISMAN, personally and as NEXT FRIEND OF WEISMAN No. 90-1014. United States Supreme Court. Argued November 6, 1991. Decided June 24, 1992. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT *578 *579 Kennedy, J., delivered the opinion of the Court, in which Blackmun, Stevens, O'Connor, and Souter, JJ., joined. Blackmun, J., post, p. 599, and Souter, J., post, p. 609, filed concurring opinions, in which Stevens and O'Connor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and White and Thomas, JJ., joined, post, p. 631. Charles J. Cooper argued the cause for petitioners. With him on the briefs were Michael A. Carvin, Peter J. Ferrara, Robert J. Cynkar, Joseph A. Rotella, and Jay Alan Sekulow. Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Deputy Assistant Attorney General McGinnis, and Richard H. Seamon. Sandra A. Blanding argued the cause for respondent. With her on the brief were Steven R. Shapiro and John A. Powell.[*] *580 Justice Kennedy, delivered the opinion of the Court. School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts.\n*581 I A Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah's father, Daniel Weisman, objected to any prayers at Deborah's middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah's class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted. It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled \"Guidelines for Civic Occasions,\" prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with \"inclusiveness and sensitivity,\" though they acknowledge that \"[p]rayer of any kind may be inappropriate on some civic occasions.\" App. 20-21. The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. Agreed Statement of Facts \u00b6 17, id., at 13. Rabbi Gutterman's prayers were as follows: \"INVOCATION \"God of the Free, Hope of the Brave: \"For the legacy of America where diversity is celebrated and the rights of minorities are protected, we *582 thank You. May these young men and women grow up to enrich it. \"For the liberty of America, we thank You. May these new graduates grow up to guard it. \"For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust. \"For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it. \"May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled. AMEN\" \"BENEDICTION \"O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. \"Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them. \"The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly. \"We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion. AMEN\" Id., at 22-23. *583 The record in this case is sparse in many respects, and we are unfamiliar with any fixed custom or practice at middle school graduations, referred to by the school district as \"promotional exercises.\" We are not so constrained with reference to high schools, however. High school graduations are such an integral part of American cultural life that we can with confidence describe their customary features, confirmed by aspects of the record and by the parties' representations at oral argument. In the Providence school system, most high school graduation ceremonies are conducted away from the school, while most middle school ceremonies are held on school premises. Classical High School, which Deborah now attends, has conducted its graduation ceremonies on school premises. Agreed Statement of Facts \u00b6 37, id., at 17. The parties stipulate that attendance at graduation ceremonies is voluntary. Agreed Statement of Facts \u00b6 41, id., at 18. The graduating students enter as a group in a processional, subject to the direction of teachers and school officials, and sit together, apart from their families. We assume the clergy's participation in any high school graduation exercise would be about what it was at Deborah's middle school ceremony. There the students stood for the Pledge of Allegiance and remained standing during the rabbi's prayers. Tr. of Oral Arg. 38. Even on the assumption that there was a respectful moment of silence both before and after the prayers, the rabbi's two presentations must not have extended much beyond a minute each, if that. We do not know whether he remained on stage during the whole ceremony, or whether the students received individual diplomas on stage, or if he helped to congratulate them. The school board (and the United States, which supports it as amicus curiae ) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of *584 our people ought to be expressed at an event as important in life as a graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman's case.\nB Deborah's graduation was held on the premises of Nathan Bishop Middle School on June 29, 1989. Four days before the ceremony, Daniel Weisman, in his individual capacity as a Providence taxpayer and as next friend of Deborah, sought a temporary restraining order in the United States District Court for the District of Rhode Island to prohibit school officials from including an invocation or benediction in the graduation ceremony. The court denied the motion for lack of adequate time to consider it. Deborah and her family attended the graduation, where the prayers were recited. In July 1989, Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations. We find it unnecessary to address Daniel Weisman's taxpayer standing, for a live and justiciable controversy is before us. Deborah Weisman is enrolled as a student at Classical High School in Providence and from the record it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation. Agreed Statement of Facts \u00b6 38, App. 17. The case was submitted on stipulated facts. The District Court held that petitioners' practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amendment, and it enjoined petitioners from continuing the practice. 728 F. Supp. 68 (1990). The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman, 403 U. S. 602 (1971). Under that test as described in our past cases, to satisfy the Establishment Clause a governmental *585 practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion. Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 773 (1973). The District Court held that petitioners' actions violated the second part of the test, and so did not address either the first or the third. The court decided, based on its reading of our precedents, that the effects test of Lemon is violated whenever government action \"creates an identification of the state with a religion, or with religion in general,\" 728 F. Supp., at 71, or when \"the effect of the governmental action is to endorse one religion over another, or to endorse religion in general.\" Id., at 72. The court determined that the practice of including invocations and benedictions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause. In so holding the court expressed the determination not to follow Stein v. Plainwell Community Schools, 822 F. 2d 1406 (1987), in which the Court of Appeals for the Sixth Circuit, relying on our decision in Marsh v. Chambers, 463 U. S. 783 (1983), held that benedictions and invocations at public school graduations are not always unconstitutional. In Marsh we upheld the constitutionality of the Nebraska State Legislature's practice of opening each of its sessions with a prayer offered by a chaplain paid out of public funds. The District Court in this case disagreed with the Sixth Circuit's reasoning because it believed that Marsh was a narrow decision, \"limited to the unique situation of legislative prayer,\" and did not have any relevance to school prayer cases. 728 F. Supp., at 74. On appeal, the United States Court of Appeals for the First Circuit affirmed. The majority opinion by Judge Torruella adopted the opinion of the District Court. 908 F. 2d 1090 (1990). Judge Bownes joined the majority, but wrote a separate concurring opinion in which he decided that the *586 practices challenged here violated all three parts of the Lemon test. Judge Bownes went on to agree with the District Court that Marsh had no application to school prayer cases and that the Stein decision was flawed. He concluded by suggesting that under Establishment Clause rules no prayer, even one excluding any mention of the Deity, could be offered at a public school graduation ceremony. 908 F. 2d, at 1090-1097. Judge Campbell dissented, on the basis of Marsh and Stein. He reasoned that if the prayers delivered were nonsectarian, and if school officials ensured that persons representing a variety of beliefs and ethical systems were invited to present invocations and benedictions, there was no violation of the Establishment Clause. 908 F. 2d, at 1099. We granted certiorari, 499 U. S. 918 (1991), and now affirm.\nII These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989); Wallace v. Jaffree, 472 U. S. 38 (1985); Lynch v. Donnelly, 465 U. S. 668 (1984). For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an *587 unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools' efforts to accommodate religion are measured. Thus we do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman, supra. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us. The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which \"establishes a [state] religion or religious faith, or tends to do so.\" Lynch, supra, at 678; see also County of Allegheny, supra, at 591, quoting Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947). The State's involvement in the school prayers challenged today violates these central principles. That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent. Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential *588 necessarily invalidates the State's attempts to accommodate religion in all cases. The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, see infra, at 593-594, subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation. The State's role did not end with the decision to include a prayer and with the choice of a clergyman. Principal Lee provided Rabbi Gutterman with a copy of the \"Guidelines for Civic Occasions,\" and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that \"it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government,\" Engel v. Vitale, 370 U. S. 421, 425 (1962), and that is what the school officials attempted to do. Petitioners argue, and we find nothing in the case to refute it, that the directions for the content of the prayers were a good-faith attempt by the school to ensure that the sectarianism which is so often the flash point for religious animosity be removed from the graduation ceremony. The concern is understandable, as a prayer which uses ideas or images identified with a particular religion may foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral. The school's explanation, however, does not resolve the dilemma caused by its participation. The question is not the good faith of the school in attempting to make *589 the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes, are obliged to attend. We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals for the Sixth Circuit, picked up by Judge Campbell's dissent in the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not. Stein, 822 F. 2d, at 1409; 908 F. 2d 1090, 1098-1099 (CA1 1990) (Campbell, J., dissenting) (case below); see also Note, Civil Religion and the Establishment Clause, 95 Yale L. J. 1237 (1986). If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself. The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference. *590 James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: \"[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.\" Memorial and Remonstrance Against Religious Assessments (1785), in 8 Papers of James Madison 301 (W. Rachal, R. Rutland, B. Ripel, & F. Teute eds. 1973). These concerns have particular application in the case of school officials, whose effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject. Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. Engel v. Vitale, supra, at 425. And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted. The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not. To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance *591 presupposes some mutuality of obligation. It is argued that our constitutional vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve, and that prayer at a high school graduation does nothing more than offer a choice. By the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief, formal prayer ceremony that the school offers in return. This argument cannot prevail, however. It overlooks a fundamental dynamic of the Constitution. The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. Meese v. Keene, 481 U. S. 465, 480-481 (1987); see also Keller v. State Bar of California, 496 U. S. 1, 10-11 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977). The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. Buckley v. Valeo, 424 U. S. 1, 92-93, and n. 127 (1976) (per curiam). The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in *592 the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed. The lessons of the First Amendment are as urgent in the modern world as in the 18th century when it was written. One timeless lesson is that if citizens are subjected to statesponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves. As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. See, e. g., School Dist. of Abington v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U. S. 578, 584 (1987); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 261-262 (1990) (Kennedy, J., concurring). Our decisions in Engel v. Vitale, 370 U. S. 421 (1962), and School Dist. of Abington, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S., at 661 (Kennedy, J., concurring in judgment in part and dissenting in part). What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. *593 We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it. Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention. Brittain, Adolescent Choices and Parent-Peer Cross-Pressures, *594 28 Am. Sociological Rev. 385 (June 1963); Clasen & Brown, The Multidimensionality of Peer Pressure in Adolescence, 14 J. of Youth and Adolescence 451 (Dec. 1985); Brown, Clasen, & Eicher, Perceptions of Peer Pressure, Peer Conformity Dispositions, and Self-Reported Behavior Among Adolescents, 22 Developmental Psychology 521 (July 1986). To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means. The injury caused by the government's action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. To do so would be an affront to the rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these. Assuming, as we must, that the prayers were offensive to the student and the parent who now object, the intrusion was both real and, in the context of a secondary school, a violation of the objectors' rights. That the intrusion was in the course of promulgating religion that sought to be civic or nonsectarian rather than pertaining to one sect does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront. See supra, at 593. There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Agreed Statement of Facts \u00b6 41, App. 18. Petitioners and *595 the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life's most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term \"voluntary,\" for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts. The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government's position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of *596 Deborah's classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands. The Government's argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Government's position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, hereby electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is especially high. See supra, at 593-594. Just as in Engel v. Vitale, 370 U. S., at 430, and School Dist. of Abington v. Schempp, 374 U. S., at 224-225, where we found that provisions within the challenged legislation permitting a student to be voluntarily excused from attendance or participation in the daily prayers did not shield those practices from invalidation, the fact that attendance at the graduation ceremonies is voluntary in a legal sense does not save the religious exercise. Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U. S. 783 (1983). The considerations *597 we have raised in objection to the invocation and benediction are in many respects similar to the arguments we considered in Marsh. But there are also obvious differences. The atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important for the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. The Marsh majority in fact gave specific recognition to this distinction and placed particular reliance on it in upholding the prayers at issue there. 463 U. S., at 792. Today's case is different. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students. Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986). In this atmosphere the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh and suffices to make the religious exercise a First Amendment violation. Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one, and we cannot accept the parallel relied upon by petitioners and the United States between the facts of Marsh and the case now before us. Our decisions in Engel v. Vitale, supra, and School Dist. of Abington v. Schempp, supra, require us to distinguish the public school context. We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure *598 social isolation or even anger may be the price of conscience or nonconformity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause. The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid. Our jurisprudence in this area is of necessity one of linedrawing, of determining at what point a dissenter's rights of religious freedom are infringed by the State. \"The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.\" School Dist. of Abington v. Schempp, supra, at 308 (Goldberg, J., concurring). Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student's life for precepts of a morality higher even than the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and allpervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. See School Dist. of Abington, supra, at 306 (Goldberg, J., concurring). We recognize that, at graduation time and throughout the course of the educational process, there will *599 be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. See Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990). But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment. For the reasons we have stated, the judgment of the Court of Appeals is Affirmed. Justice Blackmun, with whom Justice Stevens and Justice O'Connor join, concurring. Nearly half a century of review and refinement of Establishment Clause jurisprudence has distilled one clear understanding: Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal affairs of any religious institution. The application of these principles to the present case mandates the decision reached today by the Court.\nI This Court first reviewed a challenge to state law under the Establishment Clause in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947).[1] Relying on the history of the *600 Clause, and the Court's prior analysis, Justice Black outlined the considerations that have become the touchstone of Establishment Clause jurisprudence: Neither a State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither a State nor the Federal Government, openly or secretly, can participate in the affairs of any religious organization and vice versa.[2] \"In the words of Jefferson, the clause *601 against establishment of religion by law was intended to erect `a wall of separation between church and State.' \" Everson, 330 U. S., at 16 (quoting Reynolds v. United States, 98 U. S. 145, 164 (1879)). The dissenters agreed: \"The Amendment's purpose . . . was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.\" 330 U. S., at 31-32 (Rutledge, J., dissenting, joined by Frankfurter, Jackson, and Burton, JJ.). In Engel v. Vitale, 370 U. S. 421 (1962), the Court considered for the first time the constitutionality of prayer in a public school. Students said aloud a short prayer selected by the State Board of Regents: \"`Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.' \" Id., at 422. Justice Black, writing for the Court, again made clear that the First Amendment forbids the use of the power or prestige of the government to control, support, or influence the religious beliefs and practices of the American people. Although the prayer was \"denominationally neutral\" and \"its observance on the part of the students [was] voluntary,\" id., at 430, the Court found that it violated this essential precept of the Establishment Clause. A year later, the Court again invalidated governmentsponsored prayer in public schools in School Dist. of Abington v. Schempp, 374 U. S. 203 (1963). In Schempp, the school day for Baltimore, Maryland, and Abington Township, Pennsylvania, students began with a reading from the Bible, or a recitation of the Lord's Prayer, or both. After a thorough review of the Court's prior Establishment Clause cases, the Court concluded: *602 \"[T]he Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.\" Id., at 222. Because the schools' opening exercises were governmentsponsored religious ceremonies, the Court found that the primary effect was the advancement of religion and held, therefore, that the activity violated the Establishment Clause. Id., at 223-224. Five years later, the next time the Court considered whether religious activity in public schools violated the Establishment Clause, it reiterated the principle that government \"may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite.\" Epperson v. Arkansas, 393 U. S. 97, 104 (1968). \"`If [the purpose or primary effect] is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.' \" Id., at 107 (quoting Schempp, 374 U. S., at 222). Finding that the Arkansas law aided religion by preventing the teaching of evolution, the Court invalidated it. In 1971, Chief Justice Burger reviewed the Court's past decisions and found: \"Three . . . tests may be gleaned from our cases.\" Lemon v. Kurtzman, 403 U. S. 602, 612. In order for a statute to survive an Establishment Clause challenge, \"[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster an excessive government entanglement with *603 religion.\" Id., at 612-613 (internal quotation marks and citations omitted).[3] After Lemon, the Court continued to rely on these basic principles in resolving Establishment Clause disputes.[4] Application of these principles to the facts of this case is straightforward. There can be \"no doubt\" that the \"invocation of God's blessings\" delivered at Nathan Bishop Middle School \"is a religious activity.\" Engel, 370 U. S., at 424. In the words of Engel, the rabbi's prayer \"is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious.\" Id., at 424-425. The question then is whether the government has \"plac[ed] its official stamp of approval\" on the prayer. Id., at 429. As the Court ably demonstrates, when the government \"compose[s] official prayers,\" id. , at 425, selects the member of the clergy to deliver the prayer, has the prayer delivered at a public school event that is planned, supervised, and given by school officials, and pressures *604 students to attend and participate in the prayer, there can be no doubt that the government is advancing and promoting religion.[5] As our prior decisions teach us, it is this that the Constitution prohibits.\nII I join the Court's opinion today because I find nothing in it inconsistent with the essential precepts of the Establishment Clause developed in our precedents. The Court holds that the graduation prayer is unconstitutional because the State \"in effect required participation in a religious exercise.\" Ante, at 594. Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing or promoting religion. But it is not enough that the government restrain from compelling religious practices: It must not engage in them either. See Schempp, 374 U. S., at 305 (Goldberg, J., concurring). The Court repeatedly has recognized that a violation of the Establishment Clause is not predicated on coercion. See, e. g., id., at 223; id. , at 229 (Douglas, J., concurring); Wallace v. Jaffree, 472 U. S. 38, 72 (1985) (O'Connor, J., concurring in judgment) (\"The decisions [in Engel and Schempp ] acknowledged the coercion implicit under the statutory schemes, but they expressly turned only on the fact that the government was sponsoring a manifestly religious exercise\" (citation omitted)); Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 786 (1973) (\"[P]roof of coercion . . . [is] not a necessary element of any claim under the Establishment Clause\"). The Establishment Clause proscribes public schools from \"conveying or attempting to convey *605 a message that religion or a particular religious belief is favored or preferred, \" County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 593 (1989) (internal quotation marks omitted; emphasis in original), even if the schools do not actually \"impos[e] pressure upon a student to participate in a religious activity.\"[6]Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 261 (1990) (Kennedy, J., concurring in part and concurring in judgment). The scope of the Establishment Clause's prohibitions developed in our case law derives from the Clause's purposes. The First Amendment encompasses two distinct guarantees\u2014the government shall make no law respecting an establishment of religion or prohibiting the free exercise thereof\u2014both with the common purpose of securing religious liberty.[7] Through vigorous enforcement of both Clauses, we \"promote and assure the fullest possible scope of religious liberty and tolerance for all and . . . nurture the conditions which secure the best hope of attainment of that end.\" Schempp, 374 U. S., at 305 (Goldberg, J., concurring). There is no doubt that attempts to aid religion through government coercion jeopardize freedom of conscience. Even subtle pressure diminishes the right of each individual to choose voluntarily what to believe. Representative Carroll explained during congressional debate over the Establishment *606 Clause: \"[T]he rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand.\" 1 Annals of Cong. 757 (1789). Our decisions have gone beyond prohibiting coercion, however, because the Court has recognized that \"the fullest possible scope of religious liberty,\" Schempp, 374 U. S., at 305 (Goldberg, J., concurring), entails more than freedom from coercion. The Establishment Clause protects religious liberty on a grand scale; it is a social compact that guarantees for generations a democracy and a strong religious community\u2014both essential to safeguarding religious liberty. \"Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religious, by keeping their respective functions entirely separate.\" Religious Liberty, in Essays and Speeches of Jeremiah S. Black 53 (C. Black ed. 1885) (Chief Justice of the Commonwealth of Pennsylvania).[8] The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs.[9] A government cannot *607 be premised on the belief that all persons are created equal when it asserts that God prefers some. Only \"[a]nguish, hardship and bitter strife\" result \"when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval.\" Engel, 370 U. S., at 429; see also Lemon, 403 U. S., at 622-623; Aguilar v. Felton, 473 U. S. 402, 416 (1985) (Powell, J., concurring).[10] Such a struggle can \"strain a political system to the breaking point.\" Walz v. Tax Comm'n of New York City, 397 U. S. 664, 694 (1970) (opinion of Harlan, J.). When the government arrogates to itself a role in religious affairs, it abandons its obligation as guarantor of democracy. Democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it \"transforms rational debate into theological decree.\" Nuechterlein, Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L. J. 1127, 1131 (1990). Those who disagree no longer are questioning the policy judgment of the elected but the rules of a higher authority who is beyond reproach. *608 Madison warned that government officials who would use religious authority to pursue secular ends \"exceed the commission from which they derive their authority and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.\" Memorial and Remonstrance against Religious Assessments (1785), in The Complete Madison 300 (S. Padover ed. 1953). Democratic government will not last long when proclamation replaces persuasion as the medium of political exchange. Likewise, we have recognized that \"[r]eligion flourishes in greater purity, without than with the aid of Gov[ernment].\"[11]Id., at 309. To \"make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary,\" Zorach v. Clauson, 343 U. S. 306, 313 (1952), the government must not align itself with any one of them. When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being \"taint[ed] . . . with a corrosive secularism.\" School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 385 (1985). The favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation.[12] Keeping religion in the hands of private groups minimizes state intrusion on religious choice and best enables each religion to \"flourish according to the *609 zeal of its adherents and the appeal of its dogma.\" Zorach, 343 U. S., at 313. It is these understandings and fears that underlie our Establishment Clause jurisprudence. We have believed that religious freedom cannot exist in the absence of a free democratic government, and that such a government cannot endure when there is fusion between religion and the political regime. We have believed that religious freedom cannot thrive in the absence of a vibrant religious community and that such a community cannot prosper when it is bound to the secular. And we have believed that these were the animating principles behind the adoption of the Establishment Clause. To that end, our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform. I remain convinced that our jurisprudence is not misguided, and that it requires the decision reached by the Court today. Accordingly, I join the Court in affirming the judgment of the Court of Appeals. Justice Souter, with whom Justice Stevens and Justice O'Connor join, concurring. I join the whole of the Court's opinion, and fully agree that prayers at public school graduation ceremonies indirectly coerce religious observance. I write separately nonetheless on two issues of Establishment Clause analysis that underlie my independent resolution of this case: whether the Clause applies to governmental practices that do not favor one religion or denomination over others, and whether state coercion of religious conformity, over and above state endorsement of religious exercise or belief, is a necessary element of an Establishment Clause violation.\nI Forty-five years ago, this Court announced a basic principle of constitutional law from which it has not strayed: the *610 Establishment Clause forbids not only state practices that \"aid one religion . . . or prefer one religion over another,\" but also those that \"aid all religions.\" Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15 (1947). Today we reaffirm that principle, holding that the Establishment Clause forbids state-sponsored prayers in public school settings no matter how nondenominational the prayers may be. In barring the State from sponsoring generically theistic prayers where it could not sponsor sectarian ones, we hold true to a line of precedent from which there is no adequate historical case to depart.\nA Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others.[1] Thus, in Engel v. Vitale, 370 U. S. 421 (1962), we held that the public schools may not subject their students to readings of any prayer, however \"denominationally neutral.\" Id., at 430. More recently, in Wallace v. Jaffree, 472 U. S. 38 (1985), we held that an Alabama moment-of-silence statute passed for the sole purpose of \"returning voluntary prayer to public schools,\" id., at 57, violated the Establishment Clause even though it did not encourage students to pray to any particular deity. We said that \"when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.\" Id., at 52-53. This conclusion, we held, \"derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, *611 and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects\u2014or even intolerance among `religions'\u2014to encompass intolerance of the disbeliever and the uncertain.\" Id., at 53-54 (footnotes omitted). Likewise, in Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989), we struck down a state tax exemption benefiting only religious periodicals; even though the statute in question worked no discrimination among sects, a majority of the Court found that its preference for religious publications over all other kinds \"effectively endorses religious belief.\" Id., at 17 (plurality opinion); see id., at 28 (Blackmun, J., concurring in judgment) (\"A statutory preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause is all about and hence is constitutionally intolerable\"). And in Torcaso v. Watkins, 367 U. S. 488 (1961), we struck down a provision of the Maryland Constitution requiring public officials to declare a \"`belief in the existence of God,' \" id., at 489, reasoning that, under the Religion Clauses of the First Amendment, \"neither a State nor the Federal Government . . . can constitutionally pass laws or impose requirements which aid all religions as against non-believers . . . ,\" id., at 495. See also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (\"The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion\"); School Dist. of Abington v. Schempp, 374 U. S. 203, 216 (1963) (\"this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another\"); id., at 319\u2014 320 (Stewart, J., dissenting) (the Clause applies \"to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker\"). Such is the settled law. Here, as elsewhere, we should stick to it absent some compelling reason to discard it. See *612 Arizona v. Rumsey, 467 U. S. 203, 212 (1984); Payne v. Tennessee, 501 U. S. 808, 842 (1991) (Souter, J., concurring).\nB Some have challenged this precedent by reading the Establishment Clause to permit \"nonpreferential\" state promotion of religion. The challengers argue that, as originally understood by the Framers, \"[t]he Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion.\" Wallace, supra, at 106 (Rehnquist, J., dissenting); see also R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1988). While a case has been made for this position, it is not so convincing as to warrant reconsideration of our settled law; indeed, I find in the history of the Clause's textual development a more powerful argument supporting the Court's jurisprudence following Everson. When James Madison arrived at the First Congress with a series of proposals to amend the National Constitution, one of the provisions read that \"[t]he civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.\" 1 Annals of Cong. 434 (1789). Madison's language did not last long. It was sent to a Select Committee of the House, which, without explanation, changed it to read that \"no religion shall be established by law, nor shall the equal rights of conscience be infringed.\" Id., at 729. Thence the proposal went to the Committee of the Whole, which was in turn dissatisfied with the Select Committee's language and adopted an alternative proposed by Samuel Livermore of New Hampshire: \"Congress shall make no laws touching religion, or infringing the rights of conscience.\" See id., at 731. Livermore's proposal would have forbidden laws having anything to do with religion and was thus not *613 only far broader than Madison's version, but broader even than the scope of the Establishment Clause as we now understand it. See, e. g., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987) (upholding legislative exemption of religious groups from certain obligations under civil rights laws). The House rewrote the amendment once more before sending it to the Senate, this time adopting, without recorded debate, language derived from a proposal by Fisher Ames of Massachusetts: \"Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.\" 1 Documentary History of the First Federal Congress of the United States of America 136 (Senate Journal) (L. de Pauw ed. 1972); see 1 Annals of Cong. 765 (1789). Perhaps, on further reflection, the Representatives had thought Livermore's proposal too expansive, or perhaps, as one historian has suggested, they had simply worried that his language would not \"satisfy the demands of those who wanted something said specifically against establishments of religion.\" L. Levy, The Establishment Clause 81 (1986) (hereinafter Levy). We do not know; what we do know is that the House rejected the Select Committee's version, which arguably ensured only that \"no religion\" enjoyed an official preference over others, and deliberately chose instead a prohibition extending to laws establishing \"religion\" in general. The sequence of the Senate's treatment of this House proposal, and the House's response to the Senate, confirm that the Framers meant the Establishment Clause's prohibition to encompass nonpreferential aid to religion. In September 1789, the Senate considered a number of provisions that would have permitted such aid, and ultimately it adopted one of them. First, it briefly entertained this language: \"Congress shall make no law establishing One Religious Sect or Society in preference to others, nor shall the rights of conscience be infringed.\" See 1 Documentary History, at 151 *614 (Senate Journal); id., at 136. After rejecting two minor amendments to that proposal, see id., at 151, the Senate dropped it altogether and chose a provision identical to the House's proposal, but without the clause protecting the \"rights of conscience,\" ibid. With no record of the Senate debates, we cannot know what prompted these changes, but the record does tell us that, six days later, the Senate went half circle and adopted its narrowest language yet: \"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.\" Id., at 166. The Senate sent this proposal to the House along with its versions of the other constitutional amendments proposed. Though it accepted much of the Senate's work on the Bill of Rights, the House rejected the Senate's version of the Establishment Clause and called for a joint conference committee, to which the Senate agreed. The House conferees ultimately won out, persuading the Senate to accept this as the final text of the Religion Clauses: \"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\" What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of \"a religion,\" \"a national religion,\" \"one religious sect,\" or specific \"articles of faith.\"[2] The Framers repeatedly *615 considered and deliberately rejected such narrow language and instead extended their prohibition to state support for \"religion\" in general. Implicit in their choice is the distinction between preferential and nonpreferential establishments, which the weight of evidence suggests the Framers appreciated. See, e. g., Laycock, \"Nonpreferential\" Aid 902-906; Levy 91-119. But cf. T. Curry, The First Freedoms 208-222 (1986). Of particular note, the Framers were vividly familiar with efforts in the Colonies and, later, the States to impose general, nondenominational assessments and other incidents of ostensibly ecumenical establishments. See generally Levy 1-62. The Virginia statute for religious freedom, written by Jefferson and sponsored by Madison, captured the separationist response to such measures. Condemning all establishments, however nonpreferentialist, the statute broadly guaranteed that \"no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever,\" including his own. Act for Establishing Religious Freedom (1785), in 5 The Founders' Constitution 84, 85 (P. Kurland & R. Lerner eds. 1987). Forcing a citizen to support even his own church would, among other things, deny \"the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind.\" Id., at 84. In general, Madison later added, \"religion & Govt. will both exist in greater purity, the less they are mixed together.\" Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105, 106. What we thus know of the Framers' experience underscores the observation of one prominent commentator, that confining the Establishment Clause to a prohibition on preferential aid \"requires a premise that the Framers were extraordinarily bad drafters\u2014that they believed one thing but adopted language that said something substantially different, and that they did so after repeatedly attending to the *616 choice of language.\" Laycock, \"Nonpreferential\" Aid 882\u2014 883; see also County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 647\u2014 648 (1989) (opinion of Stevens, J.). We must presume, since there is no conclusive evidence to the contrary, that the Framers embraced the significance of their textual judgment.[3] Thus, on balance, history neither contradicts nor warrants reconsideration of the settled principle that the Establishment Clause forbids support for religion in general no less than support for one religion or some.\nC While these considerations are, for me, sufficient to reject the nonpreferentialist position, one further concern animates my judgment. In many contexts, including this one, nonpreferentialism requires some distinction between \"sectarian\" religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the competence *617 of the federal judiciary, or more deliberately to be avoided where possible. This case is nicely in point. Since the nonpreferentiality of a prayer must be judged by its text, Justice Blackmun pertinently observes, ante, at 604, n. 5, that Rabbi Gutterman drew his exhortation \"`[t]o do justly, to love mercy, to walk humbly' \" straight from the King James version of Micah, ch. 6, v. 8. At some undefinable point, the similarities between a state-sponsored prayer and the sacred text of a specific religion would so closely identify the former with the latter that even a nonpreferentialist would have to concede a breach of the Establishment Clause. And even if Micah's thought is sufficiently generic for most believers, it still embodies a straightforwardly theistic premise, and so does the rabbi's prayer. Many Americans who consider themselves religious are not theistic; some, like several of the Framers, are deists who would question Rabbi Gutterman's plea for divine advancement of the country's political and moral good. Thus, a nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government's preference for theistic over nontheistic religion is constitutional. Nor does it solve the problem to say that the State should promote a \"diversity\" of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each. In fact, the prospect would be even worse than that. As Madison observed in criticizing religious Presidential proclamations, the practice of sponsoring religious messages tends, over time, \"to narrow the recommendation to the standard of the predominant sect.\" Madison's \"Detached Memoranda,\" 3 Wm. & Mary Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison's \"Detached Memoranda\"). We have not changed much since the days of Madison, and the judiciary should not *618 willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes.\nII Petitioners rest most of their argument on a theory that, whether or not the Establishment Clause permits extensive nonsectarian support for religion, it does not forbid the state to sponsor affirmations of religious belief that coerce neither support for religion nor participation in religious observance. I appreciate the force of some of the arguments supporting a \"coercion\" analysis of the Clause. See generally County of Allegheny, supra, at 655-679 (opinion of Kennedy, J.); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933 (1986). But we could not adopt that reading without abandoning our settled law, a course that, in my view, the text of the Clause would not readily permit. Nor does the extra textual evidence of original meaning stand so unequivocally at odds with the textual premise inherent in existing precedent that we should fundamentally reconsider our course.\nA Over the years, this Court has declared the invalidity of many noncoercive state laws and practices conveying a message of religious endorsement. For example, in County of Allegheny, supra, we forbade the prominent display of a nativity scene on public property; without contesting the dissent's observation that the cr\u00e8che coerced no one into accepting or supporting whatever message it proclaimed, five Members of the Court found its display unconstitutional as a state endorsement of Christianity. Id., at 589-594, 598-602. Likewise, in Wallace v. Jaffree, 472 U. S. 38 (1985), we struck down a state law requiring a moment of silence in public classrooms not because the statute coerced students to participate in prayer (for it did not), but because the manner of *619 its enactment \"convey[ed] a message of state approval of prayer activities in the public schools.\" Id., at 61; see also id., at 67-84 (O'Connor, J., concurring in judgment). Cf. Engel v. Vitale, 370 U. S., at 431 (\"When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that\"). In Epperson v. Arkansas, 393 U. S. 97 (1968), we invalidated a state law that barred the teaching of Darwin's theory of evolution because, even though the statute obviously did not coerce anyone to support religion or participate in any religious practice, it was enacted for a singularly religious purpose. See also Edwards v. Aguillard, 482 U. S. 578, 593 (1987) (statute requiring instruction in \"creation science\" \"endorses religion in violation of the First Amendment\"). And in School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), we invalidated a program whereby the State sent public school teachers to parochial schools to instruct students on ostensibly nonreligious matters; while the scheme clearly did not coerce anyone to receive or subsidize religious instruction, we held it invalid because, among other things, \"[t]he symbolic union of church and state inherent in the [program] threatens to convey a message of state support for religion to students and to the general public.\" Id., at 397; see also Texas Monthly, Inc. v. Bullock, 489 U. S., at 17 (plurality opinion) (tax exemption benefiting only religious publications \"effectively endorses religious belief\"); id., at 28 (Blackmun, J., concurring in judgment) (exemption unconstitutional because State \"engaged in preferential support for the communication of religious messages\"). Our precedents may not always have drawn perfectly straight lines. They simply cannot, however, support the position that a showing of coercion is necessary to a successful Establishment Clause claim.\n*620 B Like the provisions about \"due\" process and \"unreasonable\" searches and seizures, the constitutional language forbidding laws \"respecting an establishment of religion\" is not pellucid. But virtually everyone acknowledges that the Clause bans more than formal establishments of religion in the traditional sense, that is, massive state support for religion through, among other means, comprehensive schemes of taxation. See generally Levy 1-62 (discussing such establishments in the Colonies and early States). This much follows from the Framers' explicit rejection of simpler provisions prohibiting either the establishment of a religion or laws \"establishing religion\" in favor of the broader ban on laws \"respecting an establishment of religion.\" See supra, at 612-614. While some argue that the Framers added the word \"respecting\" simply to foreclose federal interference with state establishments of religion, see, e. g., Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1157 (1991), the language sweeps more broadly than that. In Madison's words, the Clause in its final form forbids \"everything like\" a national religious establishment, see Madison's \"Detached Memoranda\" 558, and, after incorporation, it forbids \"everything like\" a state religious establishment.[4] Cf. County of Allegheny, 492 U. S., at 649 (opinion of Stevens, J.). The sweep is broad enough that Madison himself characterized congressional provisions for legislative and military chaplains as unconstitutional \"establishments.\" Madison's \"Detached Memoranda\" 558-559; see infra, at 624-625, and n. 6. *621 While petitioners insist that the prohibition extends only to the \"coercive\" features and incidents of establishment, they cannot easily square that claim with the constitutional text. The First Amendment forbids not just laws \"respecting an establishment of religion,\" but also those \"prohibiting the free exercise thereof.\" Yet laws that coerce nonadherents to \"support or participate in any religion or its exercise,\" County of Allegheny, supra, at 659-660 (opinion of Kennedy, J.), would virtually by definition violate their right to religious free exercise. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877 (1990) (under Free Exercise Clause, \"government may not compel affirmation of religious belief\"), citing Torcaso v. Watkins, 367 U. S. 488 (1961); see also J. Madison, Memorial and Remonstrance Against Religious Assessments (1785) (compelling support for religious establishments violates \"free exercise of Religion\"), quoted in 5 The Founders' Constitution, at 82, 84. Thus, a literal application of the coercion test would render the Establishment Clause a virtual nullity, as petitioners' counsel essentially conceded at oral argument. Tr. of Oral Arg. 18. Our cases presuppose as much; as we said in School Dist. of Abington, \"[t]he distinction between the two clauses is apparent\u2014a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.\" 374 U. S., at 223; see also Laycock, \"Nonpreferential\" Aid 922 (\"If coercion is . . . an element of the establishment clause, establishment adds nothing to free exercise\"). While one may argue that the Framers meant the Establishment Clause simply to ornament the First Amendment, cf. T. Curry, The First Freedoms 216-217 (1986), that must be a reading of last resort. Without compelling evidence to the contrary, we should presume that the Framers meant the Clause to stand for something more than petitioners attribute to it.\n*622 C Petitioners argue from the political setting in which the Establishment Clause was framed, and from the Framers' own political practices following ratification, that government may constitutionally endorse religion so long as it does not coerce religious conformity. The setting and the practices warrant canvassing, but while they yield some evidence for petitioners' argument, they do not reveal the degree of consensus in early constitutional thought that would raise a threat to stare decisis by challenging the presumption that the Establishment Clause adds something to the Free Exercise Clause that follows it. The Framers adopted the Religion Clauses in response to a long tradition of coercive state support for religion, particularly in the form of tax assessments, but their special antipathy to religious coercion did not exhaust their hostility to the features and incidents of establishment. Indeed, Jefferson and Madison opposed any political appropriation of religion, see infra, at 623-626, and, even when challenging the hated assessments, they did not always temper their rhetoric with distinctions between coercive and noncoercive state action. When, for example, Madison criticized Virginia's general assessment bill, he invoked principles antithetical to all state efforts to promote religion. An assessment, he wrote, is improper not simply because it forces people to donate \"three pence\" to religion, but, more broadly, because \"it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.\" J. Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 5 The Founders' Constitution, at 83. Madison saw that, even without the tax collector's participation, an official endorsement of religion can impair religious liberty. Petitioners contend that because the early Presidents included religious messages in their inaugural and Thanksgiving Day addresses, the Framers could not have meant the *623 Establishment Clause to forbid noncoercive state endorsement of religion. The argument ignores the fact, however, that Americans today find such proclamations less controversial than did the founding generation, whose published thoughts on the matter belie petitioners' claim. President Jefferson, for example, steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses. Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 The Founders' Constitution, at 98. In explaining his views to the Reverend Samuel Miller, Jefferson effectively anticipated, and rejected, petitioners' position: \"[I]t is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U. S. an authority over religious exercises which the Constitution has directly precluded from them. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion.\" Id., at 98-99 (emphasis in original). By condemning such noncoercive state practices that, in \"recommending\" the majority faith, demean religious dissenters \"in public opinion,\" Jefferson necessarily condemned what, in modern terms, we call official endorsement of religion. He accordingly construed the Establishment Clause to forbid not simply state coercion, but also state endorsement, of religious belief and observance.[5] And if he opposed *624 impersonal Presidential addresses for inflicting \"proscription in public opinion,\" all the more would he have condemned less diffuse expressions of official endorsement. During his first three years in office, James Madison also refused to call for days of thanksgiving and prayer, though later, amid the political turmoil of the War of 1812, he did so on four separate occasions. See Madison's \"Detached Memoranda\" 562, and n. 54. Upon retirement, in an essay condemning as an unconstitutional \"establishment\" the use of public money to support congressional and military chaplains, id., at 558-560,[6] he concluded that \"[r]eligious proclamations *625 by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed. Altho' recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.\" Id., at 560. Explaining that \"[t]he members of a Govt . . . canin no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities,\" ibid., he further observed that the state necessarily freights all of its religious messages with political ones: \"the idea of policy [is] associated with religion, whatever be the mode or the occasion, when a function of the latter is assumed by those in power.\" Id., at 562 (footnote omitted). Madison's failure to keep pace with his principles in the face of congressional pressure cannot erase the principles. He admitted to backsliding, and explained that he had made the content of his wartime proclamations inconsequential enough to mitigate much of their impropriety. See ibid.; see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105. While his writings suggest mild variations in his interpretation of the Establishment Clause, Madison was no different in that respect from the rest of his political generation. That he expressed so much doubt about the constitutionality of religious proclamations, however, suggests a brand of separationism stronger even than that embodied in our traditional jurisprudence. So too does his characterization of public subsidies for legislative and military chaplains as unconstitutional \"establishments,\" see supra, at 624 and this page, and n. 6, for the federal courts, however expansive their general view of the Establishment Clause, have upheld both practices. See Marsh v. Chambers, 463 U. S. 783 (1983) (legislative chaplains); *626 Katcoff v. Marsh, 755 F. 2d 223 (CA2 1985) (military chaplains). To be sure, the leaders of the young Republic engaged in some of the practices that separationists like Jefferson and Madison criticized. The First Congress did hire institutional chaplains, see Marsh v. Chambers, supra, at 788, and Presidents Washington and Adams unapologetically marked days of \"`public thanksgiving and prayer,'\" see R. Cord, Separation of Church and State 53 (1988). Yet in the face of the separationist dissent, those practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next. \"Indeed, by 1787 the provisions of the state bills of rights had become what Madison called mere `paper parchments'\u2014expressions of the most laudable sentiments, observed as much in the breach as in practice.\" Kurland, The Origins of the Religion Clauses of the Constitution, 27 Wm. & Mary L. Rev. 839, 852 (1986) (footnote omitted). Sometimes the National Constitution fared no better. Ten years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress's political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship. While we may be unable to know for certain what the Framers meant by the Clause, we do know that, around the time of its ratification, a respectable body of opinion supported a considerably broader reading than petitioners urge upon us. This consistency with the textual considerations is enough to preclude fundamentally reexamining our settled law, and I am accordingly left with the task of considering whether the state practice at issue here violates our traditional understanding of the Clause's proscriptions.\n*627 III While the Establishment Clause's concept of neutrality is not self-revealing, our recent cases have invested it with specific content: the State may not favor or endorse either religion generally over nonreligion or one religion over others. See, e. g., County of Allegheny, 492 U. S., at 589-594, 598-602; Texas Monthly, 489 U. S., at 17 (plurality opinion); id., at 28 (Blackmun, J., concurring in judgment); Edwards v. Aguillard, 482 U. S., at 593; School Dist. of Grand Rapids, 473 U. S., at 389-392; Wallace v. Jaffree, 472 U. S., at 61; see also Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990); cf. Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). This principle against favoritism and endorsement has become the foundation of Establishment Clause jurisprudence, ensuring that religious belief is irrelevant to every citizen's standing in the political community, see County of Allegheny, supra, at 594; J. Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 5 The Founders' Constitution, at 82-83, and protecting religion from the demeaning effects of any governmental embrace, see id., at 83. Now, as in the early Republic, \"religion & Govt. will both exist in greater purity, the less they are mixed together.\" Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 106. Our aspiration to religious liberty, embodied in the First Amendment, permits no other standard.\nA That government must remain neutral in matters of religion does not foreclose it from ever taking religion into account. The State may \"accommodate\" the free exercise of religion by relieving people from generally applicable rules that interfere with their religious callings. See, e. g., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987); see also Sherbert v. Verner, 374 U. S. 398 (1963). Contrary to the *628 views of some,[7] such accommodation does not necessarily signify an official endorsement of religious observance over disbelief. In everyday life, we routinely accommodate religious beliefs that we do not share. A Christian inviting an Orthodox Jew to lunch might take pains to choose a kosher restaurant; an atheist in a hurry might yield the right of way to an Amish man steering a horse-drawn carriage. In so acting, we express respect for, but not endorsement of, the fundamental values of others. We act without expressing a position on the theological merit of those values or of religious belief in general, and no one perceives us to have taken such a position. The government may act likewise. Most religions encourage devotional practices that are at once crucial to the lives of believers and idiosyncratic in the eyes of nonadherents. By definition, secular rules of general application are drawn from the nonadherent's vantage and, consequently, fail to take such practices into account. Yet when enforcement of such rules cuts across religious sensibilities, as it often does, it puts those affected to the choice of taking sides between God and government. In such circumstances, accommodating religion reveals nothing beyond a recognition that general rules can unnecessarily offend the religious conscience when they offend the conscience of secular society not at all. Cf. Welsh v. United States, 398 U. S. 333, 340 (1970) (plurality opinion). Thus, in freeing the Native American Church from federal laws forbidding peyote use, see Drug Enforcement Administration Miscellaneous Exemptions, 21 CFR *629 \u00a7 1307.31 (1991), the government conveys no endorsement of peyote rituals, the Church, or religion as such; it simply respects the centrality of peyote to the lives of certain Americans. See Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L. J. 1127, 1135-1136 (1990).\nB Whatever else may define the scope of accommodation permissible under the Establishment Clause, one requirement is clear: accommodation must lift a discernible burden on the free exercise of religion. See County of Allegheny, supra, at 601, n. 51; id., at 631-632 (O'Connor, J., concurring in part and concurring in judgment); Corporation of Presiding Bishop, supra, at 348 (O'Connor, J., concurring in judgment); see also Texas Monthly, supra, at 18, 18-19, n. 8 (plurality opinion); Wallace v. Jaffree, supra, at 57-58, n. 45. But see County of Allegheny, supra, at 663, n. 2 (Kennedy, J., concurring in judgment in part and dissenting in part). Concern for the position of religious individuals in the modern regulatory State cannot justify official solicitude for a religious practice unburdened by general rules; such gratuitous largesse would effectively favor religion over disbelief. By these lights one easily sees that, in sponsoring the graduation prayers at issue here, the State has crossed the line from permissible accommodation to unconstitutional establishment. Religious students cannot complain that omitting prayers from their graduation ceremony would, in any realistic sense, \"burden\" their spiritual callings. To be sure, many of them invest this rite of passage with spiritual significance, but they may express their religious feelings about it before and after the ceremony. They may even organize a privately sponsored baccalaureate if they desire the company of likeminded students. Because they accordingly have no need for the machinery of the State to affirm their beliefs, the *630 government's sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of theistic religion. One may fairly say, as one commentator has suggested, that the government brought prayer into the ceremony \"precisely because some people want a symbolic affirmation that government approves and endorses their religion, and because many of the people who want this affirmation place little or no value on the costs to religious minorities.\" Laycock, Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo. Wash. L. Rev. 841, 844 (1992).[8] Petitioners would deflect this conclusion by arguing that graduation prayers are no different from Presidential religious proclamations and similar official \"acknowledgments\" of religion in public life. But religious invocations in Thanksgiving Day addresses and the like, rarely noticed, ignored without effort, conveyed over an impersonal medium, and directed at no one in particular, inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families. Madison himself respected the difference between the trivial and the serious in constitutional practice. Realizing that his contemporaries *631 were unlikely to take the Establishment Clause seriously enough to forgo a legislative chaplainship, he suggested that \"[r]ather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex . . . .\" Madison's \"Detached Memoranda\" 559; see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105. But that logic permits no winking at the practice in question here. When public school officials, armed with the State's authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause. However \"ceremonial\" their messages may be, they are flatly unconstitutional. Justice Scalia, with whom The Chief Justice, Justice White, and Justice Thomas join, dissenting. Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in light of the \"[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage.\" That opinion affirmed that \"the meaning of the Clause is to be determined by reference to historical practices and understandings.\" It said that \"[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.\" County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 657, 670 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part). These views of course prevent me from joining today's opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court\u2014with nary a mention that it is doing *632 so\u2014lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durham v. United States, 94 U. S. App. D. C. 228, 214 F. 2d 862 (1954). Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.\nI Justice Holmes' aphorism that \"a page of history is worth a volume of logic,\" New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921), applies with particular force to our Establishment Clause jurisprudence. As we have recognized, our interpretation of the Establishment Clause should \"compor[t] with what history reveals was the contemporaneous understanding of its guarantees.\" Lynch v. Donnelly, 465 U. S. 668, 673 (1984). \"[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.\" School Dist. of Abington v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J., concurring). \"[H]istorical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied\" to contemporaneous practices. Marsh v. Chambers, 463 U. S. 783, 790 (1983). Thus, \"[t]he existence from the beginning of the Nation's life of a practice, [while] not conclusive of its constitutionality . . .[,] is a fact of considerable import in the interpretation\" of the *633 Establishment Clause. Walz v. Tax Comm'n of New York City, 397 U. S. 664, 681 (1970) (Brennan, J., concurring). The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition. Illustrations of this point have been amply provided in our prior opinions, see, e. g., Lynch, supra, at 674-678; Marsh, supra, at 786-788; see also Wallace v. Jaffree, 472 U. S. 38, 100-103 (1985) (Rehnquist, J., dissenting); Engel v. Vitale, 370 U. S. 421, 446-450, and n. 3 (1962) (Stewart, J., dissenting), but since the Court is so oblivious to our history as to suggest that the Constitution restricts \"preservation and transmission of religious beliefs . . . to the private sphere,\" ante, at 589, it appears necessary to provide another brief account. From our Nation's origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, \"appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions\" and avowed \"a firm reliance on the protection of divine Providence.\" In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President: \"[I]t would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes.\" Inaugural Addresses of the Presidents of the United States, S. Doc. 101-10, p. 2 (1989). Such supplications have been a characteristic feature of inaugural addresses ever since. Thomas Jefferson, for example, *634 prayed in his first inaugural address: \"[M]ay that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity.\" Id., at 17. In his second inaugural address, Jefferson acknowledged his need for divine guidance and invited his audience to join his prayer: \"I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.\" Id., at 22-23. Similarly, James Madison, in his first inaugural address, placed his confidence \"in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.\" Id., at 28. Most recently, President Bush, continuing the tradition established by President Washington, asked those attending his inauguration to bow their heads, and made a prayer his first official act as President. Id., at 346. Our national celebration of Thanksgiving likewise dates back to President Washington. As we recounted in Lynch: *635 \"The day after the First Amendment was proposed, Congress urged President Washington to proclaim `a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.' President Washington proclaimed November 26, 1789, a day of thanksgiving to `offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions . . . .'\" 465 U. S., at 675, n. 2 (citations omitted). This tradition of Thanksgiving Proclamations\u2014with their religious theme of prayerful gratitude to God\u2014has been adhered to by almost every President. Id., at 675, and nn. 2 and 3; Wallace v. Jaffree, supra, at 100-103 (Rehnquist, J., dissenting). The other two branches of the Federal Government also have a long-established practice of prayer at public events. As we detailed in Marsh, congressional sessions have opened with a chaplain's prayer ever since the First Congress. 463 U. S., at 787-788. And this Court's own sessions have opened with the invocation \"God save the United States and this Honorable Court\" since the days of Chief Justice Marshall. 1 C. Warren, The Supreme Court in United States History 469 (1922). In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public school graduation exercises. By one account, the first public high school graduation ceremony took place in Connecticut in July 1868\u2014the very month, as it happens, that the Fourteenth Amendment (the vehicle by which the Establishment Clause has been applied against the States) was ratified\u2014when \"15 seniors from the Norwich Free Academy marched in their best Sunday suits and dresses into a church hall and waited through majestic music and long prayers.\" Brodinsky, Commencement Rites Obsolete? Not At All, A 10-Week Study Shows, 10 Updating *636 School Board Policies, No. 4, p. 3 (Apr. 1979). As the Court obliquely acknowledges in describing the \"customary features\" of high school graduations, ante, at 583, and as respondents do not contest, the invocation and benediction have long been recognized to be \"as traditional as any other parts of the [school] graduation program and are widely established.\" H. McKown, Commencement Activities 56 (1931); see also Brodinsky, supra, at 5.\nII The Court presumably would separate graduation invocations and benedictions from other instances of public \"preservation and transmission of religious beliefs\" on the ground that they involve \"psychological coercion.\" I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989), has come to \"requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.\" American Jewish Congress v. Chicago, 827 F. 2d 120, 129 (CA7 1987) (Easterbrook, J., dissenting). But interior decorating is a rock-hard science compared to psychology practiced by amateurs. A few citations of \"[r]esearch in psychology\" that have no particular bearing upon the precise issue here, ante, at 593, cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court's argument that state officials have \"coerced\" students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent. The Court identifies two \"dominant facts\" that it says dictate its ruling that invocations and benedictions at public school graduation ceremonies violate the Establishment Clause. Ante, at 586. Neither of them is in any relevant sense true.\n*637 A The Court declares that students' \"attendance and participation in the [invocation and benediction] are in a fair and real sense obligatory.\" Ibid. But what exactly is this \"fair and real sense\"? According to the Court, students at graduation who want \"to avoid the fact or appearance of participation,\" ante, at 588, in the invocation and benediction are psychologically obligated by \"public pressure, as well as peer pressure, . . . to stand as a group or, at least, maintain respectful silence\" during those prayers. Ante, at 593. This assertion\u2014the very linchpin of the Court's opinion \u2014is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a D\u00fcrer-like prayer position, pay attention to the prayers, utter \"Amen,\" or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters.) It claims only that students are psychologically coerced \"to stand . . . or, at least, maintain respectful silence.\" Ibid. (emphasis added). Both halves of this disjunctive (both of which must amount to the fact or appearance of participation in prayer if the Court's analysis is to survive on its own terms) merit particular attention. To begin with the latter: The Court's notion that a student who simply sits in \"respectful silence\" during the invocation and benediction (when all others are standing) has somehow joined\u2014or would somehow be perceived as having joined\u2014 in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely \"our social conventions,\" ibid., have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence. Since the Court does not dispute that students exposed to prayer at graduation ceremonies retain (despite \"subtle coercive pressures,\" ante, at 588) the free will to sit, cf. ante, at 593, there is absolutely no basis for the Court's *638 decision. It is fanciful enough to say that \"a reasonable dissenter,\" standing head erect in a class of bowed heads, \"could believe that the group exercise signified her own participation or approval of it,\" ibid. It is beyond the absurd to say that she could entertain such a belief while pointedly declining to rise. But let us assume the very worst, that the nonparticipating graduate is \"subtly coerced\" . . . to stand! Even that half of the disjunctive does not remotely establish a \"participation\" (or an \"appearance of participation\") in a religious exercise. The Court acknowledges that \"in our culture standing . . . can signify adherence to a view or simple respect for the views of others.\" Ibid. (Much more often the latter than the former, I think, except perhaps in the proverbial town meeting, where one votes by standing.) But if it is a permissible inference that one who is standing is doing so simply out of respect for the prayers of others that are in progress, then how can it possibly be said that a \"reasonable dissenter . . . could believe that the group exercise signified her own participation or approval\"? Quite obviously, it cannot. I may add, moreover, that maintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate\u2014so that even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter's interest in avoiding even the false appearance of participation constitutionally trumps the government's interest in fostering respect for religion generally. The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman's invocation? Ante, at 583. The government can, of course, no more coerce political orthodoxy than religious orthodoxy. West *639 Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943). Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase \"under God,\" recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court's view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In Barnette we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence\u2014indeed, even to stand in respectful silence\u2014when those who wished to recite it did so. Logically, that ought to be the next project for the Court's bulldozer. I also find it odd that the Court concludes that high school graduates may not be subjected to this supposed psychological coercion, yet refrains from addressing whether \"mature adults\" may. Ante, at 593. I had thought that the reason graduation from high school is regarded as so significant an event is that it is generally associated with transition from adolescence to young adulthood. Many graduating seniors, of course, are old enough to vote. Why, then, does the Court treat them as though they were first-graders? Will we soon have a jurisprudence that distinguishes between mature and immature adults? B The other \"dominant fac[t]\" identified by the Court is that \"[s]tate officials direct the performance of a formal religious exercise\" at school graduation ceremonies. Ante, at 586. \"Direct[ing] the performance of a formal religious exercise\" has a sound of liturgy to it, summoning up images of the principal directing acolytes where to carry the cross, or showing the rabbi where to unroll the Torah. A Court professing to be *640 engaged in a \"delicate and fact-sensitive\" line-drawing, ante, at 597, would better describe what it means as \"prescribing the content of an invocation and benediction.\" But even that would be false. All the record shows is that principals of the Providence public schools, acting within their delegated authority, have invited clergy to deliver invocations and benedictions at graduations; and that Principal Lee invited Rabbi Gutterman, provided him a two-page pamphlet, prepared by the National Conference of Christians and Jews, giving general advice on inclusive prayer for civic occasions, and advised him that his prayers at graduation should be nonsectarian. How these facts can fairly be transformed into the charges that Principal Lee \"directed and controlled the content of [Rabbi Gutterman's] prayer,\" ante, at 588, that school officials \"monitor prayer,\" ante, at 590, and attempted to \"`compose official prayers,' \" ante, at 588, and that the \"government involvement with religious activity in this case is pervasive,\" ante, at 587, is difficult to fathom. The Court identifies nothing in the record remotely suggesting that school officials have ever drafted, edited, screened, or censored graduation prayers, or that Rabbi Gutterman was a mouthpiece of the school officials. These distortions of the record are, of course, not harmless error: without them the Court's solemn assertion that the school officials could reasonably be perceived to be \"enforc[ing] a religious orthodoxy,\" ante, at 592, would ring as hollow as it ought.\nIII The deeper flaw in the Court's opinion does not lie in its wrong answer to the question whether there was stateinduced \"peer-pressure\" coercion; it lies, rather, in the Court's making violation of the Establishment Clause hinge on such a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state *641 church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). Thus, for example, in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches. Id., at 3-4. The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). I will further acknowledge for the sake of argument that, as some scholars have argued, by 1790 the term \"establishment\" had acquired an additional meaning\u2014\"financial support of religion generally, by public taxation\"\u2014that reflected the development of \"general or multiple\" establishments, not limited to a single church. Id., at 8-9. But that would still be an establishment coerced by force of law. And I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations, see Church of Holy Trinity v. United States, 143 U. S. 457 (1892), ruled out of order governmentsponsored endorsement of religion\u2014even when no legal coercion is present, and indeed even when no ersatz, \"peerpressure\" psycho-coercion is present\u2014where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ). But there is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman\u2014with no one legally coerced to recite *642 them\u2014violated the Constitution of the United States. To the contrary, they are so characteristically American they could have come from the pen of George Washington or Abraham Lincoln himself. Thus, while I have no quarrel with the Court's general proposition that the Establishment Clause \"guarantees that government may not coerce anyone to support or participate in religion or its exercise,\" ante, at 587, I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty\u2014a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone rather than of Freud. The Framers were indeed opposed to coercion of religious worship by the National Government; but, as their own sponsorship of nonsectarian prayer in public events demonstrates, they understood that \"[s]peech is not coercive; the listener may do as he likes.\" American Jewish Congress v. Chicago, 827 F. 2d, at 132 (Easterbrook, J., dissenting). This historical discussion places in revealing perspective the Court's extravagant claim that the State has \"for all practical purposes,\" ante, at 589, and \"in every practical sense,\" ante, at 598, compelled students to participate in prayers at graduation. Beyond the fact, stipulated to by the parties, that attendance at graduation is voluntary, there is nothing in the record to indicate that failure of attending students to take part in the invocation or benediction was subject to any penalty or discipline. Contrast this with, for example, the facts of Barnette: Schoolchildren were required by law to recite the Pledge of Allegiance; failure to do so resulted in expulsion, threatened the expelled child with the prospect of being sent to a reformatory for criminally inclined juveniles, and subjected his parents to prosecution (and incarceration) for causing delinquency. 319 U. S., at 629-630. To characterize the \"subtle coercive pressures,\" ante, at 588, allegedly present here as the \"practical\" equivalent *643 of the legal sanctions in Barnette is . . . well, let me just say it is not a \"delicate and fact-sensitive\" analysis. The Court relies on our \"school prayer\" cases, Engel v. Vitale, 370 U. S. 421 (1962), and School Dist. of Abington v. Schempp, 374 U. S. 203 (1963). Ante, at 592. But whatever the merit of those cases, they do not support, much less compel, the Court's psycho-journey. In the first place, Engel and Schempp do not constitute an exception to the rule, distilled from historical practice, that public ceremonies may include prayer, see supra, at 633-636; rather, they simply do not fall within the scope of the rule (for the obvious reason that school instruction is not a public ceremony). Second, we have made clear our understanding that school prayer occurs within a framework in which legal coercion to attend school (i. e., coercion under threat of penalty) provides the ultimate backdrop. In Schempp, for example, we emphasized that the prayers were \"prescribed as part of the curricular activities of students who are required by law to attend school.\" 374 U. S., at 223 (emphasis added). Engel's suggestion that the school prayer program at issue there\u2014which permitted students \"to remain silent or be excused from the room,\" 370 U. S., at 430\u2014involved \"indirect coercive pressure,\" id., at 431, should be understood against this backdrop of legal coercion. The question whether the opt-out procedure in Engel sufficed to dispel the coercion resulting from the mandatory attendance requirement is quite different from the question whether forbidden coercion exists in an environment utterly devoid of legal compulsion. And finally, our school prayer cases turn in part on the fact that the classroom is inherently an instructional setting, and daily prayer there\u2014where parents are not present to counter \"the students' emulation of teachers as role models and the children's susceptibility to peer pressure,\" Edwards v. Aguillard, 482 U. S. 578, 584 (1987)\u2014might be thought to raise special concerns regarding state interference with the liberty of parents to direct the religious upbringing of their children: \"Families entrust public *644 schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.\" Ibid.; see Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925). Voluntary prayer at graduation\u2014a onetime ceremony at which parents, friends, and relatives are present\u2014can hardly be thought to raise the same concerns.\nIV Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our longaccepted constitutional traditions. Foremost among these has been the so-called Lemon test, see Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), which has received well-earned criticism from many Members of this Court. See, e. g., County of Allegheny, 492 U. S., at 655-656 (opinion of Kennedy, J.); Edwards v. Aguillard, supra, at 636-640 (Scalia, J., dissenting); Wallace v. Jaffree, 472 U. S., at 108-112 (Rehnquist, J., dissenting); Aguilar v. Felton, 473 U. S. 402, 426-430 (1985) (O'Connor, J., dissenting); Roemer v. Board of Pub. Works of Md., 426 U. S. 736, 768-769 (1976) (White, J., concurring in judgment). The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, see ante, at 587, and the interment of that case may be the one happy by product of the Court's otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double disability of having no roots whatever in our people's historic practice, and being as infinitely expandable as the reasons for psychotherapy itself. Another happy aspect of the case is that it is only a jurisprudential disaster and not a practical one. Given the odd basis for the Court's decision, invocations and benedictions will be able to be given at public school graduations next *645 June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country.\n* * * The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests on the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the \"protection of divine Providence,\" as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington's first Thanksgiving Proclamation put it, the \"Great Lord and Ruler of Nations.\" One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it. The narrow context of the present case involves a community's celebration of one of the milestones in its young citizens' *646 lives, and it is a bold step for this Court to seek to banish from that occasion, and from thousands of similar celebrations throughout this land, the expression of gratitude to God that a majority of the community wishes to make. The issue before us today is not the abstract philosophical question whether the alternative of frustrating this desire of a religious majority is to be preferred over the alternative of imposing \"psychological coercion,\" or a feeling of exclusion, upon nonbelievers. Rather, the question is whether a mandatory choice in favor of the former has been imposed by the United States Constitution. As the age-old practices of our people show, the answer to that question is not at all in doubt. I must add one final observation: The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration\u2014no, an affection\u2014for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law. For the foregoing reasons, I dissent. NOTES [7] Briefs of amici curiae urging reversal were filed for the Board of Education of Alpine School District by Brinton R. Burbidge and Merrill F. Nelson; for the Christian Legal Society et al. by Edward McGlynn Gaffney, Michael J. Woodruff, Samuel E. Ericsson, and Forest D. Montgomery; for the Clarendon Foundation by Kemp R. Harshman and Ronald D. Maines; for Concerned Women for America et al. by James Matthew Henderson, Sr., Jordan Lorence, Mark N. Troobnick, and Thomas Patrick Monaghan; for Focus on the Family et al. by Stephen H. Galebach and Laura D. Millman; for the Liberty Counsel by Mathew D. Staver; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the National Legal Foundation by Robert K. Skolrood and Brian M. McCormick; for the Rutherford Institute et al. by John W. Whitehead, Alexis I. Crow, A. Eric Johnston, Stephen E. Hurst, Joseph Secola, Thomas S. Neuberger, J. Brian Heller, Amy Dougherty, David Melton, Thomas W. Strahan, Robert R. Melnick, William Bonner, Larry Crain, W. Charles Bundren, and James Knicely; for Specialty Research Associates, Inc., et al. by Jordan Lorence; for the Southern Baptist Convention Christian Life Commission by Michael K. Whitehead and James M. Smart, Jr.; and for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris.\nBriefs of amici curiae urging affirmance were filed for Americans for Religious Liberty by Ronald A. Lindsay; and for the American Jewish Congress et al. by Douglas Laycock. Briefs of amici curiae were filed for the State of Delaware by Charles M. Oberly III, Attorney General of Delaware, Michael F. Foster, Solicitor General, David S. Swayze, and David B. Ripsom; for the Council on Religious Freedom et al. by Lee Boothby, Robert W. Nixon, Walter E. Carson, and Rolland Truman; for the Institute in Basic Life Principles by Joe Reynolds; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell and T. Jeremy Gunn; and for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon. [8] A few earlier cases involving federal laws touched on interpretation of the Establishment Clause. In Reynolds v. United States, 98 U. S. 145 (1879), and Davis v. Beason, 133 U. S. 333 (1890), the Court considered the Clause in the context of federal laws prohibiting bigamy. The Court in Reynolds accepted Thomas Jefferson's letter to the Danbury Baptist Association \"almost as an authoritative declaration of the scope and effect\" of the First Amendment. 98 U. S., at 164. In that letter Jefferson penned his famous lines that the Establishment Clause built \"a wall of separation between church and State.\" Ibid. Davis considered that \"[t]he first amendment to the Constitution . . . was intended . . . to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.\" 133 U. S., at 342. In another case, Bradfield v. Roberts, 175 U. S. 291 (1899), the Court held that it did not violate the Establishment Clause for Congress to construct a hospital building for caring for poor patients, although the hospital was managed by sisters of the Roman Catholic Church. The Court reasoned: \"That the influence of any particular church may be powerful over the members of a non-sectarian and secular corporation, incorporated for a certain defined purpose and with clearly stated powers, is surely not sufficient to convert such a corporation into a religious or sectarian body.\" Id., at 298. Finally, in 1908 the Court held that \"the spirit of the Constitution\" did not prohibit the Indians from using their money, held by the United States Government, for religious education. See Quick Bear v. Leupp, 210 U. S. 50, 81. [2] The Court articulated six examples of paradigmatic practices that the Establishment Clause prohibits: \"The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. \" Everson v. Board of Ed. of Ewing, 330 U. S., at 15. [3] The final prong, excessive entanglement, was a focus of Walz v. Tax Comm'n of New York City, 397 U. S. 664, 674 (1970), but harkens back to the final example in Everson: \"Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. \" Everson, 330 U. S., at 16. The discussion in Everson reflected the Madisonian concern that secular and religious authorities must not interfere with each other's respective spheres of choice and influence. See generally The Complete Madison 298-312 (S. Padover ed. 1953). [4] Since 1971, the Court has decided 31 Establishment Clause cases. In only one instance, the decision of Marsh v. Chambers, 463 U. S. 783 (1983), has the Court not rested its decision on the basic principles described in Lemon. For example, in the most recent Establishment Clause case, Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990), the Court applied the three-part Lemon analysis to the Equal Access Act, which made it unlawful for public secondary schools to deny equal access to any student wishing to hold religious meetings. Id., at 248-253 (plurality opinion); id., at 262 (Marshall, J., concurring in judgment). In no case involving religious activities in public schools has the Court failed to apply vigorously the Lemon factors. [5] In this case, the religious message it promotes is specifically JudeoChristian. The phrase in the benediction: \"We must each strive to fulfill what you require of us all,to do justly, to love mercy, to walk humbly\" obviously was taken from the Book of the Prophet Micah, ch. 6, v. 8. [6] As a practical matter, of course, anytime the government endorses a religious belief there will almost always be some pressure to conform. \"When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.\" Engel v. Vitale, 370 U. S. 421, 431 (1962). [7] See, e. g., Everson, 330 U. S., at 40 (Rutledge, J., dissenting) (\"`Establishment' and `free exercise' were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom\"); School Dist. of Abington v. Schempp, 374 U. S. 203, 227 (1963) (Douglas, J., concurring); id., at 305 (Goldberg, J., concurring); Wallace v. Jaffree, 472 U. S. 38, 50 (1985). [8] See also Engel, 370 U. S., at 431 (The Clause's \"first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion\"); Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 212 (1948) (\"[T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere\"). [9] \"[T]he Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.\" Wallace v. Jaffree, 472 U. S., at 69 (O'Connor, J., concurring in judgment) (internal quotation marks omitted). [10] Sigmund Freud expressed it this way: \"a religion, even if it calls itself the religion of love, must be hard and unloving to those who do not belong to it.\" S. Freud, Group Psychology and the Analysis of the Ego 51 (1922). James Madison stated the theory even more strongly in his \"Memorial and Remonstrance\" against a bill providing tax funds to religious teachers: \"It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance.\" The Complete Madison, at 303. Religion has not lost its power to engender divisiveness. \"Of all the issues the ACLU takes on\u2014reproductive rights, discrimination, jail and prison conditions, abuse of kids in the public schools, police brutality, to name a few\u2014by far the most volatile issue is that of school prayer. Aside from our efforts to abolish the death penalty, it is the only issue that elicits death threats.\" Parish, Graduation Prayer Violates the Bill of Rights, 4 Utah Bar J. 19 (June\/July 1991). [11] The view that the Establishment Clause was primarily a vehicle for protecting churches was expounded initially by Roger Williams. \"[W]ordly corruptions . . .might consume the churches if sturdy fences against the wilderness were not maintained.\" M. Howe, The Garden and the Wilderness 6 (1965). [12] \"[B]ut when a religion contracts an alliance of this nature, I do not hesitate to affirm that it commits the same error as a man who should sacrifice his future to his present welfare; and in obtaining a power to which it has no claim, it risks that authority which is rightfully its own.\" 1 A. de Tocqueville, Democracy in America 315 (H. Reeve transl. 1900). [1] Cf. Larson v. Valente, 456 U. S. 228 (1982) (subjecting discrimination against certain religious organizations to test of strict scrutiny). [2] Some commentators have suggested that by targeting laws respecting \"an\" establishment of religion, the Framers adopted the very nonpreferentialist position whose much clearer articulation they repeatedly rejected. See, e. g., R. Cord, Separation of Church and State 11-12 (1988). Yet the indefinite article before the word \"establishment\" is better seen as evidence that the Clause forbids any kind of establishment, including a nonpreferential one. If the Framers had wished, for some reason, to use the indefinite term to achieve a narrow meaning for the Clause, they could far more aptly have placed it before the word \"religion.\" See Laycock, \"Nonpreferential\" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 884-885 (1986) (hereinafter Laycock, \"Nonpreferential\" Aid). [3] In his dissent in Wallace v. Jaffree, 472 U. S. 38 (1985), The Chief Justice rested his nonpreferentialist interpretation partly on the postratification actions of the early National Government. Aside from the willingness of some (but not all) early Presidents to issue ceremonial religious proclamations, which were at worst trivial breaches of the Establishment Clause, see infra, at 630-631, he cited such seemingly preferential aid as a treaty provision, signed by Jefferson, authorizing federal subsidization of a Roman Catholic priest and church for the Kaskaskia Indians. 472 U. S., at 103. But this proves too much, for if the Establishment Clause permits a special appropriation of tax money for the religious activities of a particular sect, it forbids virtually nothing. See Laycock, \"Nonpreferential\" Aid 915. Although evidence of historical practice can indeed furnish valuable aid in the interpretation of contemporary language, acts like the one in question prove only that public officials, no matter when they serve, can turn a blind eye to constitutional principle. See infra, at 626. [4] In Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), we unanimously incorporated the Establishment Clause into the Due Process Clause of the Fourteenth Amendment and, by so doing, extended its reach to the actions of States. Id., at 14-15; see also Cantwell v. Connecticut, 310 U. S. 296, 303 (1940) (dictum). Since then, not one Member of this Court has proposed disincorporating the Clause. [5] Petitioners claim that the quoted passage shows that Jefferson regarded Thanksgiving proclamations as \"coercive\": \"Thus, while one may disagree with Jefferson's view that a recommendatory Thanksgiving proclamation would nonetheless be coercive . . . one cannot disagree that Jefferson believed coercion to be a necessary element of a First Amendment violation.\" Brief for Petitioners 34. But this is wordplay. The \"proscription\" to which Jefferson referred was, of course, by the public and not the government, whose only action was a noncoercive recommendation. And one can call any act of endorsement a form of coercion, but only if one is willing to dilute the meaning of \"coercion\" until there is no meaning left. Jefferson's position straightforwardly contradicts the claim that a showing of \"coercion,\" under any normal definition, is prerequisite to a successful Establishment Clause claim. At the same time, Jefferson's practice, like Madison's, see infra this page and 625, sometimes diverged from principle, for he did include religious references in his inaugural speeches. See Inaugural Addresses of the Presidents of the United States 17, 22-23 (1989); see also n. 3, supra.\nPetitioners also seek comfort in a different passage of the same letter. Jefferson argued that Presidential religious proclamations violate not just the Establishment Clause, but also the Tenth Amendment, for \"what might be a right in a state government, was a violation of that right when assumed by another.\" Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 The Founders' Constitution 99 (P. Kurland & R. Lerner eds. 1987). Jefferson did not, however, restrict himself to the Tenth Amendment in condemning such proclamations by a national officer. I do not, in any event, understand petitioners to be arguing that the Establishment Clause is exclusively a structural provision mediating the respective powers of the State and National Governments. Such a position would entail the argument, which petitioners do not make, and which we would almost certainly reject, that incorporation of the Establishment Clause under the Fourteenth Amendment was erroneous. [6] Madison found this practice \"a palpable violation of . . . Constitutional principles.\" Madison's \"Detached Memoranda\" 558. Although he sat on the committee recommending the congressional chaplainship, see R. Cord, Separation of Church and State: Historical Fact and Current Fiction 23 (1988), he later insisted that \"it was not with my approbation, that the deviation from [the immunity of religion from civil jurisdiction] took place in Congs., when they appointed Chaplains, to be paid from the Natl. Treasury.\" Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105. [] See, e. g., Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 726 (1981) (Rehnquist, J., dissenting); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt.L. Rev. 673, 685-686 (1980); see also Walz v. Tax Comm'n of New York City, 397 U. S. 664, 668-669 (1970); Sherbert v. Verner, 374 U. S. 398, 414, 416 (1963) (Stewart, J.,concurring in result);cf.Wallace v. Jaffree, 472 U. S., at 83 (O'Connor, J., concurring in judgment). [] If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement of religion to the State. Cf. Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 (1986). But that is not our case. Nor is this a case where the State has, without singling out religious groups or individuals, extended benefits to them as members of a broad class of beneficiaries defined by clearly secular criteria. See Widmar v. Vincent, 454 U. S. 263, 274-275 (1981); Walz, supra, at 696 (opinion of Harlan, J.) (\"In any particular case the critical question is whether the circumference of legislation encircles a class so broad that it can be fairly concluded that religious institutions could be thought to fall within the natural perimeter\"). Finally, this is not a case like Marsh v. Chambers, 463 U. S. 783 (1983), in which government officials invoke spiritual inspiration entirely for their own benefit without directing any religious message at the citizens they lead.","meta":{"dup_signals":{"dup_doc_count":1034,"dup_dump_count":93,"dup_details":{"2024-30":2,"2024-22":4,"2024-18":6,"2024-10":4,"2017-13":5,"2015-18":31,"2015-11":31,"2015-06":34,"2014-10":22,"2013-48":25,"2013-20":12,"2023-50":2,"2023-40":1,"2023-23":5,"2023-06":2,"2022-49":2,"2022-40":3,"2022-33":2,"2022-27":3,"2022-21":5,"2022-05":1,"2021-49":1,"2021-43":5,"2021-39":3,"2021-31":2,"2021-21":7,"2021-17":2,"2021-10":1,"2021-04":9,"2020-50":1,"2020-40":3,"2020-34":2,"2020-29":7,"2020-16":2,"2020-10":3,"2020-05":2,"2019-51":1,"2019-47":3,"2019-43":1,"2019-39":5,"2019-35":2,"2019-30":3,"2019-26":3,"2019-22":2,"2019-18":3,"2019-13":4,"2019-09":3,"2019-04":4,"2018-51":1,"2018-47":5,"2018-39":4,"2018-34":2,"2018-30":2,"2018-26":2,"2018-22":3,"2018-17":2,"2018-13":5,"2018-09":3,"2018-05":5,"2017-51":3,"2017-47":4,"2017-43":7,"2017-39":10,"2017-34":4,"2017-30":5,"2017-26":2,"2017-22":10,"2017-17":5,"2017-09":40,"2017-04":9,"2016-50":10,"2016-44":17,"2016-40":16,"2016-36":15,"2016-30":17,"2016-26":1,"2016-22":4,"2016-18":3,"2016-07":33,"2015-48":40,"2015-40":18,"2015-35":37,"2015-32":35,"2015-27":32,"2015-22":11,"2015-14":28,"2014-52":27,"2014-49":35,"2014-42":56,"2014-41":46,"2014-35":48,"2014-23":41,"2014-15":45}}},"subset":"freelaw"}
{"text":"454 U.S. 263 (1981) WIDMAR ET AL. v. VINCENT ET AL. No. 80-689. Supreme Court of United States. Argued October 6, 1981 Decided December 8, 1981 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT *264 Ted D. Ayres argued the cause for petitioners. With him on the brief was Jackson A. Wright. James M. Smart, Jr., argued the cause for respondents. With him on the brief was Michael K. Whitehead.[*] Briefs of amici curiae urging affirmance were filed by Joel H. Paget for the Association for the Coordination of University Religious Affairs; by Wilkes C. Robinson and Jane E. Nelson for Bible Study; by Edward McGlynn Gaffney, Jr., and Kenneth F. Ripple for the Center for Constitutional Studies et al.; by Barry A. Fisher for the Holy Spirit Association for the Unification of World Christianity; by Nathan Lewin, Daniel D. Chazin, and Dennis Rapps for the National Jewish Commission on Law and Public Affairs; and by Wilfred R. Caron for the United States Catholic Conference. Briefs of amici curiae were filed by Earl W. Trent, Jr., for the Baptist Joint Committee on Public Affairs; by J. Robert Brame, John W. Whitehead, and James J. Knicely for the National Association of Evangelicals; and by Donald L. Reidhaar for the Regents of the University of California. JUSTICE POWELL delivered the opinion of the court. This case presents the question whether a state university, which makes its facilities generally available for the activities *265 of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion.\nI It is the stated policy of the University of Missouri at Kansas City[1] to encourage the activities of student organizations. The University officially recognize over 100 student groups. It routinely provides University facilities for the meetings of registered organizations. Students pay an activity fee of $41 per semester (1978-1979) to help defray the costs to the University. From 1973 until 1977 a registered religious group named Cornerstone regularly sought and received permission to conduct its meetings in University facilities.[2] In 1977, however, the University informed the group that it could no longer meet in University buildings. The exclusion was based on a regulation, adopted by the Board of Curators in 1972, that prohibits the use of University buildings or grounds \"for purposes of religious worship of religious teaching.\"[3] *266 Eleven University students, all members of Cornerstone, brought suit to challenge the regulation in the Federal District Court for the Western District of Missouri.[4] They alleged that the University's discrimination against religious activity and discussion violated their rights to free exercise of religion, equal protection, and freedom of speech under the First and Fourteenth Amendments to the Constitution of the United States. Upon cross-motions for summary judgment, the District Court upheld the challenged regulation. Chess v. Widmar, 480 F. Supp. 907 (1979). It found the regulation not only justified, but required, by the Establishment Clause of the Federal Constitution. Id., at 916. Under Tilton v. Richardson, 403 U.S. 672 (1971), the court reasoned, the State *267 could not provide facilities for religious use without giving prohibited support to an institution of religion. 480 F. Supp., at 915-916. The District Court rejected the argument that the University could not discriminate against religious speech on the basis of its content. It found religious speech entitled to less protection than other types of expression. Id., at 918. The Court of Appeals for the Eighth Circuit reversed. Chess v. Widmar, 635 F.2d 1310 (1980). Rejecting the analysis of the District Court, it viewed the University regulation as a content-based discrimination against religious speech, for which it could find no compelling justification. Id., at 1315-1320. The court held that the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds. Id., at 1317. According to the Court of Appeals, the \"primary effect\" of such a policy would not be to advance religion, but rather to further the neutral purpose of developing students' \" `social and cultural awareness as well as [their] intellectual curiosity.' \" Ibid. (quoting from the University bulletin's description of the student activities program, reprinted in id., at 1312, n. 1). We granted certiorari. 450 U.S. 909. We now affirm.\nII Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms.[5] The Constitution *268 forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. See, e. g., Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175, and n. 8 (1976) (although a State may conduct business in private session, \"[w]here the State has opened a forum for direct citizen involvement,\" exclusions bear a heavy burden of justification); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-559 (1975) (because municipal theater was a public forum, city could not exclude a production without satisfying constitutional safeguards applicable to prior restraints). The University's institutional mission, which it describes as providing a \"secular education\" to its students, Brief for Petitioners 44, does not exempt its actions from constitutional scrutiny. With respect to persons entitled to be there, our cases leave no doubt that the First Amendment *269 rights of speech and association extend to the campuses of state universities. See, e. g., Healy v. James, 408 U.S. 169, 180 (1972); Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969); Shelton v. Tucker, 364 U.S. 479, 487 (1960). Here UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948).[6] In order to justify discriminatory *270 exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. See Carey v. Brown, 447 U.S. 455, 461, 464-465 (1980).[7] III In this case the University claims a compelling interest in maintaining strict separation of church and State. It derives this interest from the \"Establishment Clauses\" of both the Federal and Missouri Constitutions.\nA The University first argues that it cannot offer its facilities to religious groups and speakers on the terms available to *271 other groups without violating the Establishment Clause of the Constitution of the United States.[8] We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling. It does not follow, however, that an \"equal access\" policy would be incompatible with this Court's Establishment Clause cases. Those cases hold that a policy will not offend the Establishment Clause if it can pass a three-pronged test: \"First, the [governmental policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the [policy] must not foster `an excessive government entanglement with religion.' \" Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). See Committee for Public Education v. Regan, 444 U.S. 646, 653 (1980); Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748 (1976). In this case two prongs of the test are clearly met. Both the District Court and the Court of Appeals held that an open-forum policy, including nondiscrimination against religious speech,[9] would have a secular purpose[10] and would *272 avoid entanglement with religion.[11] But the District Court concluded, and the University argues here, that allowing religious groups to share the limited public forum would have the \"primary effect\" of advancing religion.[12] *273 The University's argument misconceives the nature of this case. The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content to their speech. See Healy v. James, 408 U.S. 169 (1972).[13] In this context we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion. We are not oblivious to the range of an open forum's likely effects. It is possible \u2014 perhaps even foreseeable \u2014 that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization's enjoyment of merely \"incidental\" benefits does not violate the prohibition against the \"primary advancement\" of religion. Committee for Public Education v. Nyquist, 413 U.S. 756, *274 771 (1973); see, e. g., Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976); Hunt v. McNair, 413 U.S. 734 (1973); McGowan v. Maryland, 366 U.S. 420, 422 (1961). We are satisfied that any religious benefits of an open forum at UMKC would be \"incidental\" within the meaning of our cases. Two factors are especially relevant. First, an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy \"would no more commit the University . . . to religious goals\" than it is \"now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance,\" or any other group eligible to use its facilities. 635 F.2d, at 1317.[14] Second, the forum is available to a broad class of nonreligious as well as religious speakers; there are over 100 recognized student groups at UMKC. The provision of benefits to so broad a spectrum of groups is an important index of secular effect. See, e. g., Wolman v. Walter, 433 U.S. 229, 240-241 (1977); Committee for Public Education v. Nyquist, supra, at 781-782, and n. 38. If the Establishment Clause barred the extension of general benefits to religious groups, \"a church could not be protected by the police and fire departments. *275 or have its public sidewalk kept in repair.\" Roemer v. Maryland Public Works Bd., supra, at 747 (plurality opinion); quoted in Committee for Public Education v. Regan, 444 U. S., at 658, n. 6.[15] At least in the absence of empirical evidence that religious groups will dominate UMKC's open forum, we agree with the Court of Appeals that the advancement of religion would not be the forum's \"primary effect.\" B Arguing that the State of Missouri has gone further than the Federal Constitution in proscribing indirect state support for religion,[16] the University claims a compelling interest in complying with the applicable provisions of the Missouri Constitution.[17] The Missouri courts have not ruled whether a general policy of accommodating student groups, applied equally to those wishing to gather to engage in religious and nonreligious speech, would offend the State Constitution. We need not, however, determine how the Missouri courts would decide this issue. It is also unnecessary for us to decide whether, under the Supremacy Clause,[18] a state interest, derived from its own constitution, could ever outweigh free *276 speech interests protected by the First Amendment. We limit our holding to the case before us. On one hand, respondents' First Amendment rights are entitled to special constitutional solicitude. Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content. See, e. g., Carey v. Brown, 447 U.S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972). On the other hand, the state interest asserted here \u2014 in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution \u2014 is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently \"compelling\" to justify content-based discrimination against respondents' religious speech.\nIV Our holding in this case in no way undermines the capacity of the University to establish reasonable time, place, and manner regulations.[19] Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources or \"to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.\" Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring in result); see University of California Regents v. Bakke, 438 U.S. 265, 312-313 (1978) (opinion of POWELL, J., announcing the judgment of the Court).[20] Finally, *277 we affirm the continuing validity of cases, e. g., Healy v. James, 408 U. S., at 188-189, that recognize a university's right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education. The basis for our decision is narrow. Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulations of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards. For this reason, the decision of the Court of Appeals is Affirmed. JUSTICE STEVENS, concurring in the judgment. As the Court recognizes, every university must \"make academic judgments as to how best to allocate scarce resources,\" ante, at 276. The Court appears to hold, however, that those judgments must \"serve a compelling state interest\" wherever they are based, even in part, on the content of speech. Ante, at 269-270. This conclusion apparently flows from the Court's suggestion that a student activities program \u2014 from which the public may be excluded, ante, at 267-268, n. 5 \u2014 must be managed as though it were a \"public forum.\"[1] In my opinion, the use of the terms \"compelling *278 state interest\" and \"public forum\" to analyze the question presented in this case may needlessly undermine the academic freedom of public universities. Today most major colleges and universities are operated by public authority. Nevertheless, their facilities are not open to the public in the same way that streets and parks are. University facilities \u2014 private or public \u2014 are maintained primarily for the benefit of the student body and the faculty. In performing their learning and teaching missions, the managers of a university routinely make countless decisions based on the content of communicative materials. They select books for inclusion in the library, they hire professors on the basis of their academic philosophies, they select courses for inclusion in the curriculum, and they reward scholars for what they have written. In addition, in encouraging students to participate in extracurricular activities, they necessarily make decisions concerning the content of those activities. Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time \u2014 one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet \u2014 the First Amendment would not require that the room he reserved for the group that submitted its application first. Nor do I see why a university should have to establish a \"compelling state interest\" to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of *279 this kind should be made by academicians, not by federal judges,[2] and their standards for decision should not be encumbered with ambiguous phrases like \"compelling state interest.\"[3] *280 Thus, I do not subscribe to the view that a public university has no greater interest in the content of student activities than the police chief has in the content of a soapbox oration on Capitol Hill. A university legitimately may regard some subjects as more relevant to its educational mission than others. But the university, like the police officer, may not allow its agreement or disagreement with the viewpoint of a particular speaker to determine whether access to a forum will be granted. If a state university is to deny recognition to a student organization \u2014 or is to give it a lesser right to use school facilities than other student \u2014 it must have a valid reason for doing so. Healy v. James, 408 U.S. 169.[4] In this case I agree with the Court that the University has not established a sufficient justification for its refusal to allow the Cornerstone group to engage in religious worship on the campus. The primary reason advanced for the discriminatory treatment is the University's fear of violating the Establishment Clause. But since the record discloses no danger *281 that the University will appear to sponsor any particular religion, and since student participation in the Cornerstone meetings is entirely voluntary, the Court properly concludes that the University's fear is groundless. With that justification put to one side, the University has not met the burden that is imposed on it by Healy. Nor does the University's reliance on the Establishment Clause of the Missouri State Constitution provide a sufficient justification for the discriminatory treatment in this case.[5] As I have said, I believe that the University may exercise a measure of control over the agenda for student use of school facilities, preferring some subjects over others, without needing to identify so-called \"compelling state interests.\" Quite obviously, however, the University could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege.[6] It seems apparent that the policy under attack would allow groups of young philosophers to meet to discuss their skepticism that a Supreme Being exists, or a group of political scientists to meet to debate the accuracy of the view that religion is the \"opium of the people.\" If school facilities may be used to discuss anticlerical doctrine, it seems to me that comparable use by a group desiring to express a belief in God must also be permitted. The fact that their expression of faith includes ceremonial conduct is not, in my opinion, a sufficient reason for suppressing their discussion entirely. Accordingly, although I do not endorse the Court's reasoning, I concur in its judgment. *282 JUSTICE WHITE, dissenting. In affirming the decision of the Court of Appeals, the majority rejects petitioners' argument that the Establishment Clause of the Constitution prohibits the use of university buildings for religious purposes. A state university may permit its property to be used for purely religious services without violating the First and Fourteenth Amendments. With this I agree. See Committee for Public Education v. Nyquist, 413 U.S. 756, 813 (1973) (WHITE, J., dissenting); Lemon v. Kurtzman, 403 U.S. 602, 661 (1971) (opinion of WHITE, J.). The Establishment Clause, however, sets limits only on what the State may do with respect to religious organizations; it does not establish what the State is required to do. I have long argued that Establishment Clause limits on state action which incidentally aids religion are not as strict as the Court has held. The step from the permissible to the necessary, however, is a long one. In my view, just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion. In other words, I believe the State to be a good deal freer to formulate policies that affect religion in divergent ways than does the majority. See Sherbert v. Verner, 374 U.S. 398, 422-423 (1963) (Harlan, J., dissenting). The majority's position will inevitably lead to those contradictions and tensions between the Establishment and Free Exercise Clauses warned against by Justice Stewart in Sherbert v. Verner, supra, at 416. The University regulation at issue here provides in pertinent part: \"No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. Student congregations of local *283 churches or of recognized denominations or sects, although not technically recognized campus groups, may use the facilities . . . under the same regulations that apply to recognized campus organizations, provided that no University facilities may be used for purposes of religious worship or religious teaching.\" Although there may be instances in which it would be difficult to determine whether a religious group used university facilities for \"worship\" or \"religious teaching,\" rather than for secular ends, this is not such a case. The regulation was applied to respondents' religious group, Cornerstone, only after the group explicitly informed the University that it sought access to the facilities for the purpose of offering prayer, singing hymns, reading scripture, and teaching biblical principles. Cornerstone described their meetings as follows: \"Although these meetings would not appear to a casual observer to correspond precisely to a traditional worship service, there is no doubt that worship is an important part of the general atmosphere.\" Chess v. Widmar, 480 F. Supp. 907, 910 (1979).[1] The issue here is only whether the University *284 regulation as applied and interpreted in this case is impermissible under the Federal Constitution. If it is impermissible, it is because it runs afoul of either the Free Speech or the Free Exercise Clause of the First Amendment. A large part of respondents' argument, accepted by the court below and accepted by the majority, is founded on the proposition that because religious worship uses speech, it is protected by the Free Speech Clause of the First Amendment.[2] Not only is it protected, they argue, but religious worship qua speech is not different from any other variety of protected speech as a matter of constitutional principle. I believe that this proposition is plainly wrong. Were it right, the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech. Although the majority describes this argument as \"novel,\" ante, at 269, n. 6, I believe it to be clearly supported by our previous cases. Just last Term, the Court found it sufficiently *285 obvious that the Establishment Clause prohibited a State from posting a copy of the Ten Commandments on the classroom wall that a statute requiring such a posting was summarily struck down. Stone v. Graham, 449 U.S. 39 (1980). That case necessarily presumed that the State could not ignore the religious content of the written message, nor was it permitted to treat that content as it would, or must, treat other \u2014 secular \u2014 messages under the First Amendment's protection of speech. Similarly, the Court's decisions prohibiting prayer in the public schools rest on a content-based distinction between varieties of speech: as a speech act, apart from its content, a prayer is indistinguishable from a biology lesson. See Abington School District v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). Operation of the Free Exercise Clause is equally dependent, in certain circumstances, on recognition of a content-based distinction between religious and secular speech. Thus, in Torcaso v. Watkins, 367 U.S. 488 (1961), the Court struck down, as violative of the Free Exercise Clause, a state requirement that made a declaration of belief in God a condition of state employment. A declaration is again a speech act, but it was the content of the speech that brought the case within the scope of the Free Exercise Clause. If the majority were right that no distinction may be drawn between verbal acts of worship and other verbal acts, all of these cases would have to be reconsidered. Although I agree that the line may be difficult to draw in many cases, surely the majority cannot seriously suggest that no line may ever be drawn.[3] If that were the case, the majority would *286 have to uphold the University's right to offer a class entitled \"Sunday Mass.\" Under the majority's view, such a class would be \u2014 as a matter of constitutional principle \u2014 indistinguishable from a class entitled \"The History of the Catholic Church.\"[4] There may be instances in which a State's attempt to disentangle itself from religious worship would intrude upon secular speech about religion. In such a case, the State's action would be subject to challenge under the Free Speech Clause of the First Amendment. This is not such a case. This case involves religious worship only; the fact that that worship is accomplished through speech does not add anything to respondents' argument. That argument must rely upon the claim that the State's action impermissibly interferes with the free exercise of respondents' religious practices. Although this is a close question, I conclude that it does not. Plausible analogies on either side suggest themselves. Respondents argue, and the majority agrees, that by permitting any student group to use its facilities for communicative purposes other than religious worship, the University has created a \"public forum.\" Ante, at 267-268. With ample *287 support, they argue that the State may not make content-based distinctions as to what groups may use, or what messages may be conveyed in, such a forum. See Police Department of Chicago v. Mosley, 408 U.S. 92 (1972); Cox v. Louisiana, 379 U.S. 536 (1965). The right of the religious to nondiscriminatory access to the public forum is well established. See Niemotko v. Maryland, 340 U.S. 268 (1951); Murdock v. Pennsylvania, 319 U.S. 105 (1943). Moreover, it is clear that there are bounds beyond which the University could not go in enforcing its regulation: I do not suppose it could prevent students from saying grace before meals in the school cafeteria, or prevent distribution of religious literature on campus.[5] Petitioners, on the other hand, argue that allowing use of their facilities for religious worship is constitutionally indistinguishable from directly subsidizing such religious services: It would \"fun[d] a specifically religious activity in an otherwise substantially secular setting.\" Hunt v. McNair, 413 U.S. 734, 743 (1973). They argue that the fact that secular student groups are entitled to the in-kind subsidy at issue here does not establish that a religious group is entitled to the same subsidy. They could convincingly argue, for example, that a state university that pays for basketballs for the basketball team is not thereby required to pay for Bibles for a group like Cornerstone.[6] *288 A third analogy suggests itself, one that falls between these two extremes. There are a variety of state policies which incidentally benefit religion that this Court has upheld without implying that they were constitutionally required of the State. See Board of Education v. Allen, 392 U.S. 236 (1968) (state loan of textbooks to parochial school students); Zorach v. Clauson, 343 U.S. 306 (1952) (release of students from public schools, during school hours, to perform religious activities away from the school grounds); Everson v. Board of Education, 330 U.S. 1 (1947) (state provision of transportation to parochial school students). Provision of university facilities on a uniform basis to all student groups is not very different from provision of textbooks or transportation. From this perspective the issue is not whether the State must, or must not, open its facilities to religious worship; rather, it is whether the State may choose not to do so. Each of these analogies is persuasive. Because they lead to different results, however, they are of limited help in reaching a decision here. They also demonstrate the difficulty in reconciling the various interests expressed in the Religion Clauses. In my view, therefore, resolution of this case is best achieved by returning to first principles. This requires an assessment of the burden on respondents' ability freely to exercise their religious beliefs and practices and of the State's interest in enforcing its regulation. Respondents complain that compliance with the regulation would require them to meet \"about a block and a half\" from campus under conditions less comfortable than those previously available on campus.[7] I view this burden on free exercise *289 as minimal. Because the burden is minimal, the State need do no more than demonstrate that the regulation furthers some permissible state end. The State's interest in avoiding claims that it is financing or otherwise supporting religious worship \u2014 in maintaining a definitive separation between church and State \u2014 is such an end. That the State truly does mean to act toward this end is amply supported by the treatment of religion in the State Constitution.[8] Thus, I believe the interest of the State is sufficiently strong to justify the imposition of the minimal burden on respondents' ability freely to exercise their religious beliefs. On these facts, therefore, I cannot find that the application of the regulation to prevent Cornerstone from holding religious worship services in University facilities violates the First and Fourteenth Amendments. I would not hold as the majority does that if a university permits students and others to use its property for secular purposes, it must also furnish facilities to religious groups for the purposes of worship and the practice of their religion. Accordingly, I would reverse the judgment of the Court of Appeals. NOTES [*] Briefs of amici curiae urging reversal were filed by Jerold Blumoff and Marc D. Stern for the American Jewish Congress; and by Justin J. Finger, Jeffrey P. Sinensky, and Meyer Eisenberg for the Anti-Defamation League of B'nai B'rith. [1] The University of Missouri at Kansas City (UMKC) is one of four campuses of the University of Missouri, an institution of the State of Missouri. [2] Cornerstone is an organization of evangelical Christian students from various denominational backgrounds. According to an affidavit filed in 1977, \"perhaps twenty students . . . participate actively in Cornerstone and form the backbone of the campus organization.\" Affidavit of Florian Chess (Sept. 29, 1977), quoted in Chess v. Widmar, 480 F. Supp. 907, 911 (WD Mo. 1979). Cornerstone held its on-campus meetings in classrooms and in the student center. These meetings were open to the public and attracted up to 125 students. A typical Cornerstone meeting included prayer, hymns, Bible commentary, and discussion of religious views and experiences. [3] The pertinent regulations provide as follows: \"4.0314.0107 No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. . . . The general prohibition against use of University buildings and grounds for religious worship or religious teaching is a policy required, in the opinion of The Board of Curators, by the Constitution and laws of the State and is not open to any other construction. No regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . . \"4.0314.0108 Regular chapels established on University grounds may be used for religious services but not for regular recurring services of any groups. Special rules and procedures shall be established for each such chapel by the Chancellor. It is specifically directed that no advantage shall be given to any religious group.\" There is no chapel on the campus of UMKC. The nearest University chapel is at the Columbia campus, approximately 125 miles east of UMKC. Although the University had routinely approved Cornerstone meetings before 1977, the District Court found that University officials had never \"authorized a student organization to utilize a University facility for a meeting where they had full knowledge that the purposes of the meeting include[d] religious worship or religious teaching.\" Chess v. Widmar, supra, at 910. [4] Respondent Clark Vincent and Florian Chess, a named plaintiff in the action in the District Court, were among the students who initiated the action on October 13, 1977. Named as defendants were the petitioner Gary Widmar, the Dean of Students at UMKC, and the University's Board of Curators. [5] This Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum. See generally Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Cox v. Louisiana, 379 U.S. 536 (1965). \"The college classroom with its surrounding environs is peculiarly `the marketplace of ideas.' \" Healy v. James, 408 U.S. 169, 180 (1972). Moreover, the capacity of a group or individual \"to participate in the intellectual give and take of campus debate . . . [would be] limited by denial of access to the customary media for communicating with the administration, faculty members, and other students.\" Id., at 181-182. We therefore have held that students enjoy First Amendment rights of speech and association on the campus, and that the \"denial [to particular groups] of use of campus facilities for meetings and other appropriate purposes\" must be subjected to the level of scrutiny appropriate to any form of prior restraint. Id., at 181, 184.\nAt the same time, however, our cases have recognized that First Amendment rights must be analyzed \"in light of the special characteristics of the school environment.\" Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969). We continue to adhere to that view. A university differs in significant respects for public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings. [6] The dissent argues that \"religious worship\" is not speech generally protected by the \"free speech\" guarantee of the First Amendment and the \"equal protection\" guarantee of the Fourteenth Amendment. If \"religious worship\" were protected \"speech,\" the dissent reasons, \"the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech.\" Post, at 284. This is a novel argument. The dissent does not deny that speech about religion is speech entitled to the general protections of the First Amendment. See post, at 283-284, and n. 2, 286. It does not argue that descriptions of religious experiences fail to qualify as \"speech.\" Nor does it repudiate last Term's decision in Heffron v. International Society for Krishna Consciousness, Inc., which assumed that religious appeals to nonbelievers constituted protected \"speech.\" Rather, the dissent seems to attempt a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious \"speech act[s],\" post, at 285, constituting \"worship.\" There are at least three difficulties with this distinction.\nFirst, the dissent fails to establish that the distinction has intelligible content. There is no indication when \"singing hymns, reading scripture, and teaching biblical principles,\" post, at 283, cease to be \"singing, teaching, and reading\" \u2014 all apparently forms of \"speech,\" despite their religious subject matter \u2014 and become unprotected \"worship.\" Second, even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Cf. Fowler v. Rhode Island, 345 U.S. 67, 70 (1953). Merely to draw the distinction would require the university \u2014 and ultimately the courts \u2014 to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E. g., Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). Finally, the dissent fails to establish the relevance of the distinction on which it seeks to rely. The dissent apparently wishes to preserve the vitality of the Establishment Clause. See post, at 284-285. But it gives no reason why the Establishment Clause, or any other provision of the Constitution, would require different treatment for religious speech designed to win religious converts, see Heffron, supra, than for religious worship by persons already converted. It is far from clear that the State gives greater support in the latter case than in the former. [7] See also Healy v. James, supra, at 184: \"It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legititify interest in preventing disruption on the campus, which . . . may justify such restraint, a `heavy burden' rests on the college to demonstrate the appropriateness of that action.\" [8] \"Congress shall make no law respecting an establishment of religion. . . .\" U. S. Const., Amdt. 1. The Establishment Clause has been made applicable to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). [9] As the dissent emphasizes, the Establishment Clause requires the State to distinguish between \"religious\" speech \u2014 speech, undertaken or approved by the State, the primary effect of which is to support an establishment or religion \u2014 and \"nonreligious\" speech \u2014 speech, undertaken or approved by the State, the primary effect of which is not to support an establishment or religion. This distinction is required by the plain text of the Constitution. It is followed in our cases. E. g., Stone v. Graham, 449 U.S. 39 (1980). The dissent attempts to equate this distinction with its view of an alleged constitutional difference between religious \"speech\" and religious \"worship.\" See post, at 285, and n. 3. We think that the distinction advanced by the dissent lacks a foundation in either the Constitution or in our cases, and that it is judicially unmanageable. [10] It is the avowed purpose of UMKC to provide a forum in which students can exchange ideas. The University argues that use of the forum for religious speech would undermine this secular aim. But by creating a forum the University does not thereby endorse or promote any of the particular ideas aired there. Undoubtedly many views are advocated in the forum with which the University desires no association.\nBecause this case involves a forum already made generally available to student groups, it differs from those cases in which this Court has invalidated statutes permitting school facilities to be used for instruction by religious groups, but not by others. See, e. g., McCollum v. Board of Education, 333 U.S. 203 (1948). In those cases the school may appear to sponsor the views of the speaker. [11] We agree with the Court of Appeals that the University would risk greater \"entanglement\" by attempting to enforce its exclusion of \"religious worship\" and \"religious speech.\" See Chess v. Widmar, 635 F.2d 1310, 1318 (CA8 1980). Initially, the University would need to determine which words and activities fall within \"religious worship and religious teaching.\" This alone could prove \"an impossible task in an age where many and various beliefs meet the constitutional definition of religion.\" O'Hair v. Andrus, 198 U. S. App. D. C. 198, 203, 613 F.2d 931, 936 (1979) (footnote omitted); see L. Tribe, American Constitutional Law \u00a7 14-6 (1978). There would also be a continuing need to monitor group meetings to ensure compliance with the rule. [12] In finding that an \"equal access\" policy would have the primary effect of advancing religion, the District Court in this case relief primarily on Tilton v. Richardson, 403 U.S. 672 (1971). In Tilton this Court upheld the grant of federal financing assistance to sectarian colleges for secular purposes, but circumscribed the terms of the grant to ensure its constitutionality. Although Congress had provided that federally subsidized buildings could not be used for sectarian or religious worship for 20 years, the Court considered this restriction insufficient: \"If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the [constitutionally impermissible] effect of advancing religion.\" Id., at 683. From this statement the District Court derived the proposition that state funds may not be used to provide or maintain buildings used by religious organizations.\nWe do not believe that Tilton can be read so broadly. In Tilton the Court was concerned that a sectarian institution might convert federally funded buildings to religious uses or otherwise stamp them with the imprimatur of religion. But nothing in Tilton suggested a limitation on the State's capacity to maintain forums equally open to religious and other discussion. Cases before and after Tilton have acknowledged the right of religious speakers to use public forums on equal terms with others. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Saia v. New York, 334 U.S. 558 (1948). [13] This case is different from cases in which religious groups claim that the denial of facilities not available to other groups deprives them of their rights under the Free Exercise Clause. Here, the University's forum is already available to other groups, and respondents' claim to use that forum does not rest solely on rights claimed under the Free Exercise Clause. Respondents' claim also implicates First Amendment rights of speech and association, and it is on the bases of speech and association rights that we decide the case. Accordingly, we need not inquire into the extent, if any, to which free exercise interests are infringed by the challenged University regulation. Neither do we reach the questions that would arise if state accommodation of free exercise and free speech rights should, in a particular case, conflict with the prohibitions of the Establishment Clause. [14] University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion. See Tilton v. Richardson, supra, at 685-686. The University argues that the Cornerstone students themselves admitted in affidavits that \"[s]tudents know that if something is on campus, then it is a student organization, and they are more likely to feel comfortable attending a meeting.\" Affidavit of Florian Frederick Chess, App. 18, 19. In light of the large number of groups meeting on campus, however, we doubt students could draw any reasonable inference of University support from the mere fact of a campus meeting place. The University's student handbook already notes that the University's name will not \"be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members.\" 1980-1981 UMKC Student Handbook 25. [15] This Court has similarly rejected \"the recurrent agreement that all aid [to parochial schools] is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.\" Hunt v. McNair, 413 U.S. 734, 743 (1973). [16] See, e. g., Americans United v. Rogers, 538 S.W.2d 711, 720 (Mo.) (en banc) (holding Missouri Constitution requires stricter separation of church and State than does Federal Constitution), cert. denied, 429 U.S. 1029 (1976); Harfst v. Hoegen, 349 Mo. 808, 815-816, 163 S.W.2d 609, 613-614 (Mo. 1942) (en banc) (same). [17] See Mo. Const., Art. 1, \u00a7\u00a7 6, 7; Art. 9, \u00a7 8. In Luetkemeyer v. Kaufmann, 364 F. Supp. 376 (WD Mo. 1973), aff'd, 419 U.S. 888 (1974), the District Court found Missouri had a compelling interest in compliance with its own Constitution. [18] U. S. Const., Art. VI, cl. 2. [19] See, e. g., Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (\"The nature of a place, `the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable,' \" quoting Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027, 1042 (1969)). [20] In his opinion concurring in the judgment, post, at 277-287, JUSTICE STEVENS expresses concern that use of the terms \"compelling state interest\" and \"public forum\" may \"undermine the academic freedom of public universities.\" As the text above makes clear, this concern is unjustified. See also n. 5, supra. Our holding is limited to the context of a public forum created by the University it self. [1] As stated by the Court, \"[i]n order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions.\" Ante, at 269-270. See also ante, this page, n. 20 (\"Our holding is limited to the context of a public forum created by the University itself\"). [2] In Sweezy v. New Hampshire, 354 U.S. 234, Justice Frankfurter forcefully spoke of \"the grave harm resulting from governmental intrusion into the intellectual life of a university . . . .\" Id., at 261 (concurring in result). Justice Frankfurter quoted with approval portions of an address by T. H. Huxley: \" `It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail \"the four essential freedoms\" of a university \u2014 to determine for itself of academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.' \" Id., at 263. Although these comments were not directed at a public university's concern with extracurricular activities, it is clear that the \"atmosphere\" of a university includes such a critical aspect of campus life. See also University of California Regents v. Bakke, 438 U.S. 265, 312 (opinion of POWELL, J.) (\"Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment\"); Note, Academic Freedom and Federal Regulation of University Hiring, 92 Harv. L. Rev. 879 (1879). Cf. Van Alstyne, The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, reprinted in The Concept of Academic Freedom 59, 77-81 (E. Pincoffs ed. 1972). [3] In Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, JUSTICE BLACKMUN expressed concern with \"what seems to be a continuing tendency in this Court to use as tests such easy phrases as `compelling [state] interest' and `least drastic [or restrictive] means.' I have never been able fully to appreciate just what a `compelling state interest' is. If it means `convincingly controlling,' or `incapable of being overcome' upon any balancing process, then, of course, the test merely announces an inevitable result, and the test is no test at all. And, for me, `least drastic means' is a slippery slope and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less `drastic' or a little less `restrictive' in almost any situation, and thereby enable himself to vote to strike legislation down.\" Id., at 188-189 (concurring opinion) (citation omitted). [4] In Healy, the Court stated: \"The opinions below also assumed that petitioner had the burden of showing entitlement to recognition by the College. While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College, they do question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National [Students for a Democratic Society]. For reasons to be stated later in this opinion, we do not consider the issue of affiliation to be a controlling one. But, apart from any particular issue, once petitioners had failed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disrupting on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a `heavy burden' rests on the college to demonstrate the appropriateness of that action.\" 408 U.S., at 183-184 (footnotes and citations omitted). [5] The University's asserted determination to keep Church and State completely separate, pursuant to the alleged dictates of the Missouri Constitution, is not without qualification. The very regulations at issue provide that \"[n]o regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . .\" See ante, at 266, n. 3. [6] See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L. J. 727 (1980). [1] Cornerstone was denied access to University facilities because it intended to use those facilities for regular religious services in which \"worship is an important part of the general atmosphere.\" There is no issue here as to the application of the regulation to \"religious teaching.\" Reaching this issue is particularly inappropriate in this case because nothing in the record indicates how the University has interpreted the phrase \"religious teaching\" or even whether it has ever been applied to activity that was not clearly \"religious worship.\" The District Court noted that plaintiffs did not contend that they were \"limited, in any way, for holding on campus meetings that do not include religious worship services.\" 480 F. Supp., at 913. At oral argument, counsel for the University indicated that the regulation would not bar discussion of biblical texts under circumstances that did not constitute \"religious worship.\" Tr. of Oral Arg. 9. The sole question in this case involves application of the regulation to prohibit regular religious worship services in University buildings. [2] Given that the majority's entire argument turns on this description of religious services as speech, it is surprising that the majority assumes this proposition to require no argument. The majority assumes the conclusion by describing the University's action as discriminating against \"speakers based on their desire to . . . engage in religious worship and discussion.\" Ante, at 269. As noted above, it is not at all clear that the University has discriminated or intends to discriminate against \"religious discussion\" \u2014 as a preliminary matter, it is not even clear what the majority means by \"religious discussion\" or how it entered the case. That religious worship is a form of speech, the majority takes to have been established by three cases. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948). None of these cases stand for this proposition. Heffron and Saia involved the communication of religious views to a nonreligious, public audience. Talk about religion and about religious beliefs, however, is not the same as religious services of worship. Niemotko was an equal protection challenge to a discriminatory denial of one religious group's access to a public park. The Court specifically stated that it was not addressing the question of whether the State could uniformly deny all religious groups access to public parks. 340 U.S., at 272. [3] Indeed, while footnote 6 of the majority opinion suggests that no intelligible distinction may be drawn between worship and other forms of speech, footnote 9 recognizes that the Establishment Clause \"requires\" that such a line be drawn. The majority does not adequately explain why the State is \"required\" to observe a line in one context, but prohibited from voluntarily recognizing it in another context. [4] Counsel for respondents was somewhat more forthright in recognizing the extraordinary breadth of his argument, than is the majority, Counsel explicitly stated that once the distinction between speech and worship is collapsed a university that generally provides student groups access to its facilities would be constitutionally required to allow its facilities to be used as a church for the purpose of holding \"regular church services.\" Tr. of Oral Arg. 26. Similarly, although the majority opinion limits its discussion to student groups, counsel for respondents recognized that the First Amendment argument relied upon would apply equally to nonstudent groups. He recognized that respondents' submission would require the University to make available its buildings to the Catholic Church and other denominations for the purpose of holding religious services, if University facilities were made available to nonstudent groups. Id., at 39. In other words, the University could not avoid the conversion of one of its buildings into a church, as long as the religious group meets the same neutral requirements of entry \u2014 e. g., rent \u2014 as are imposed on other groups. [5] There are obvious limits on the scope of this analogy. I know of no precedent holding that simply because a public forum is open to all kinds of speech \u2014 including speech about religion \u2014 it must be open to regular religious worship services as well. I doubt that the State need stand by and allow it public forum to become a church for any religious sect that chooses to stand on its right of access to that forum. [6] There are, or course, limits to this subsidy argument. Sherbert v. Verner, 374 U.S. 398 (1963), and Thomas v. Indiana Employment Security Division, 450 U.S. 707 (1981), demonstrate that in certain circumstances the State may be required to \"subsidize,\" at least indirectly, religious practices, under circumstances in which it does not and need not subsidize similar behavior founded on secular motives. [7] Respondents also complain that the University action has made their religious message less attractive by suggesting that it is not appropriate fare for the college campus. I give no weight to this because it is indistinguishable from an argument that respondents are entitled to the appearance of an endorsement of their beliefs and practices from the University. [8] Since 1820, the Missouri Constitution has contained provisions requiring a separation of church and State. The Missouri Supreme Court has held that the state constitutional provisions are \"not only more explicit but more restrictive than the Establishment Clause of the United States Constitution.\" Paster v. Tussey, 512 S.W.2d 97, 102 (1974).","meta":{"dup_signals":{"dup_doc_count":1222,"dup_dump_count":88,"dup_details":{"2024-30":1,"2024-26":3,"2024-22":2,"2024-18":1,"2024-10":4,"2017-13":3,"2015-18":45,"2015-11":44,"2015-06":42,"2014-10":32,"2013-48":34,"2013-20":22,"2023-50":1,"2023-40":2,"2023-23":3,"2023-14":3,"2023-06":2,"2022-49":2,"2022-40":1,"2022-33":1,"2022-21":4,"2021-49":4,"2021-39":5,"2021-25":1,"2021-21":3,"2021-10":4,"2021-04":5,"2020-50":2,"2020-45":6,"2020-40":2,"2020-34":3,"2020-24":3,"2020-16":3,"2020-05":4,"2019-51":1,"2019-47":1,"2019-43":3,"2019-39":3,"2019-30":3,"2019-26":1,"2019-22":3,"2019-18":2,"2019-13":5,"2019-04":2,"2018-47":3,"2018-43":5,"2018-39":3,"2018-34":4,"2018-30":1,"2018-26":2,"2018-17":1,"2018-13":5,"2018-09":2,"2018-05":3,"2017-51":3,"2017-47":3,"2017-43":7,"2017-39":7,"2017-34":2,"2017-30":5,"2017-26":4,"2017-22":9,"2017-17":5,"2017-09":42,"2017-04":7,"2016-50":8,"2016-44":13,"2016-40":14,"2016-36":13,"2016-30":12,"2016-26":1,"2016-22":3,"2016-18":4,"2016-07":39,"2015-48":39,"2015-40":30,"2015-35":38,"2015-32":45,"2015-27":35,"2015-22":13,"2015-14":39,"2014-52":37,"2014-49":52,"2014-42":79,"2014-41":60,"2014-35":68,"2014-23":72,"2014-15":64}}},"subset":"freelaw"}
{"text":"403 U.S. 443 (1971) COOLIDGE v. NEW HAMPSHIRE. No. 323. Supreme Court of United States. Argued January 12, 1971 Decided June 21, 1971 CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE. *445 Archibald Cox, by appointment of the Court, 400 U.S. 814, argued the cause for petitioner. With him on the briefs were Matthias J. Reynolds, John A. Graf, and Robert L. Chiesa. Alexander J. Kalinski argued the cause for respondent. With him on the brief was Warren B. Rudman, Attorney General of New Hampshire. MR. JUSTICE STEWART delivered the opinion of the Court.[*] We are called upon in this case to decide issues under the Fourth and Fourteenth Amendments arising in the context of a state criminal trial for the commission of a particularly brutal murder. As in every case, our single duty is to determine the issues presented in accord with the Constitution and the law. Pamela Mason, a 14-year-old girl, left her home in Manchester, New Hampshire, on the evening of January 13, 1964, during a heavy snowstorm, apparently in response to a man's telephone call for a babysitter. Eight days later, after a thaw, her body was found by the side of a major north-south highway several miles away. She had been murdered. The event created great alarm in the area, and the police immediately began a massive investigation. On January 28, having learned from a neighbor that the petitioner, Edward Coolidge, had been away from home on the evening of the girl's disappearance, the police went to his house to question him. They asked *446 him, among other things, if he owned any guns, and he produced three, two shotguns and a rifle. They also asked whether he would take a lie-detector test concerning his account of his activities on the night of the disappearance. He agreed to do so on the following Sunday, his day off. The police later described his attitude on the occasion of this visit as fully \"cooperative.\" His wife was in the house throughout the interview. On the following Sunday, a policeman called Coolidge early in the morning and asked him to come down to the police station for the trip to Concord, New Hampshire, where the lie-detector test was to be administered. That evening, two plainclothes policemen arrived at the Coolidge house, where Mrs. Coolidge was waiting with her mother-in-law for her husband's return. These two policemen were not the two who had visited the house earlier in the week, and they apparently did not know that Coolidge had displayed three guns for inspection during the earlier visit. The plainclothesmen told Mrs. Coolidge that her husband was in \"serious trouble\" and probably would not be home that night. They asked Coolidge's mother to leave, and proceeded to question Mrs. Coolidge. During the course of the interview they obtained from her four guns belonging to Coolidge, and some clothes that Mrs. Coolidge thought her husband might have been wearing on the evening of Pamela Mason's disappearance. Coolidge was held in jail on an unrelated charge that night, but he was released the next day.[1] During the ensuing two and a half weeks, the State accumulated a quantity of evidence to support the theory that it was he who had killed Pamela Mason. On February 19, the results of the investigation were presented at a meeting between the police officers working on the case and the *447 State Attorney General, who had personally taken charge of all police activities relating to the murder, and was later to serve as chief prosecutor at the trial. At this meeting, it was decided that there was enough evidence to justify the arrest of Coolidge on the murder charge and a search of his house and two cars. At the conclusion of the meeting, the Manchester police chief made formal application, under oath, for the arrest and search warrants. The complaint supporting the warrant for a search of Coolidge's Pontiac automobile, the only warrant that concerns us here, stated that the affiant \"has probable cause to suspect and believe, and does suspect and believe, and herewith offers satisfactory evidence, that there are certain objects and things used in the Commission of said offense, now kept, and concealed in or upon a certain vehicle, to wit: 1951 Pontiac two-door sedan. . . .\" The warrants were then signed and issued by the Attorney General himself, acting as a justice of the peace. Under New Hampshire law in force at that time, all justices of the peace were authorized to issue search warrants. N. H. Rev. Stat. Ann. \u00a7 595:1 (repealed 1969). The police arrested Coolidge in his house on the day the warrant issued. Mrs. Coolidge asked whether she might remain in the house with her small child, but was told that she must stay elsewhere, apparently in part because the police believed that she would be harassed by reporters if she were accessible to them. When she asked whether she might take her car, she was told that both cars had been \"impounded,\" and that the police would provide transportation for her. Some time later, the police called a towing company, and about two and a half hours after Coolidge had been taken into custody the cars were towed to the police station. It appears that at the time of the arrest the cars were parked in the Coolidge driveway, and that although dark had fallen *448 they were plainly visible both from the street and from inside the house where Coolidge was actually arrested. The 1951 Pontiac was searched and vacuumed on February 21, two days after it was seized, again a year later, in January 1965, and a third time in April 1965. At Coolidge's subsequent jury trial on the charge of murder, vacuum sweepings, including particles of gun powder, taken from the Pontiac were introduced in evidence against him, as part of an attempt by the State to show by microscopic analysis that it was highly probable that Pamela Mason had been in Coolidge's car.[2] Also introduced in evidence was one of the guns taken by the police on their Sunday evening visit to the Coolidge house\u2014a .22-caliber Mossberg rifle, which the prosecution claimed was the murder weapon. Conflicting ballistics testimony was offered on the question whether the bullets found in Pamela Mason's body had been fired from this rifle. Finally, the prosecution introduced vacuum sweepings of the clothes taken from the Coolidge house that same Sunday evening, and attempted to show through microscopic analysis that there was a high probability that the clothes had been in contact with Pamela Mason's body. Pretrial motions to suppress all this evidence were referred by the trial judge to the New Hampshire Supreme Court, which ruled the evidence admissible. 106 N. H. 186, 208 A.2d 322. The jury found Coolidge guilty and he was sentenced to life imprisonment. The New Hampshire Supreme Court affirmed the judgment of conviction, 109 N. H. 403, 260 A.2d 547, and we granted certiorari to consider the constitutional questions raised by the admission of this evidence against Coolidge at his trial. 399 U.S. 926.\n*449 I The petitioner's first claim is that the warrant authorizing the seizure and subsequent search of his 1951 Pontiac automobile was invalid because not issued by a \"neutral and detached magistrate.\" Since we agree with the petitioner that the warrant was invalid for this reason, we need not consider his further argument that the allegations under oath supporting the issuance of the warrant were so conclusory as to violate relevant constitutional standards. Cf. Giordenello v. United States, 357 U.S. 480; Aguilar v. Texas, 378 U.S. 108. The classic statement of the policy underlying the warrant requirement of the Fourth Amendment is that of Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 13-14: \"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.\" Cf. United States v. Lefkowitz, 285 U.S. 452, 464; Giordenello v. United States, supra, at 486. Wong Sun v. *450 United States, 371 U.S. 471, 481-482; Katz v. United States, 389 U.S. 347, 356-357. In this case, the determination of probable cause was made by the chief \"government enforcement agent\" of the State\u2014the Attorney General\u2014who was actively in charge of the investigation and later was to be chief prosecutor at the trial. To be sure, the determination was formalized here by a writing bearing the title \"Search Warrant,\" whereas in Johnson there was no piece of paper involved, but the State has not attempted to uphold the warrant on any such artificial basis. Rather, the State argues that the Attorney General, who was unquestionably authorized as a justice of the peace to issue warrants under then-existing state law, did in fact act as a \"neutral and detached magistrate.\" Further, the State claims that any magistrate, confronted with the showing of probable cause made by the Manchester chief of police, would have issued the warrant in question. To the first proposition it is enough to answer that there could hardly be a more appropriate setting than this for a per se rule of disqualification rather than a case-by-case evaluation of all the circumstances. Without disrespect to the state law enforcement agent here involved, the whole point of the basic rule so well expressed by Mr. Justice Jackson is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations\u2014the \"competitive enterprise\" that must rightly engage their single-minded attention.[3] Cf. Mancusi v. DeForte, 392 U.S. 364, 371. As for the proposition that the existence of probable cause renders noncompliance with the warrant procedure an irrelevance, *451 it is enough to cite Agnello v. United States, 269 U.S. 20, 33, decided in 1925: \"Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.\" See also Jones v. United States, 357 U.S. 493, 497-498; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392. (\"[T]he rights . . . against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.\") But the New Hampshire Supreme Court, in upholding the conviction, relied upon the theory that even if the warrant procedure here in issue would clearly violate the standards imposed on the Federal Government by the Fourth Amendment, it is not forbidden the States under the Fourteenth. This position was premised on a passage from the opinion of this Court in Ker v. California, 374 U.S. 23, 31: \"Preliminary to our examination of the search and seizures involved here, it might be helpful for us to indicate what was not decided in Mapp [v. Ohio, 367 U.S. 643]. First, it must be recognized that the `principles governing the admissibility of evidence in federal criminal trials have not been restricted . . . to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts . . . this Court has . . . formulated rules of evidence to be applied in federal criminal prosecutions.' McNabb v. United States, 318 U.S. 332, 341 . . . Mapp, however, established no assumption by this Court of supervisory authority over state courts . . . and, consequently, it implied no total *452 obliteration of state laws relating to arrests and searches in favor of federal law. Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, supra, at 221, that `a healthy federalism depends upon the avoidance of needless conflict between state and federal courts' by itself urging that `[f]ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.' 367 U.S., at 658.\" (Emphasis in Ker.) It is urged that the New Hampshire statutes which at the time of the searches here involved permitted a law enforcement officer himself to issue a warrant was one of those \"workable rules governing arrests, searches and seizures to meet `the practical demands of effective criminal investigation and law enforcement' in the States,\" id., at 34, authorized by Ker. That such a procedure was indeed workable from the point of view of the police is evident from testimony at the trial in this case: \"The Court: You mean that another police officer issues these [search warrants]? \"The Witness: Yes. Captain Couture and Captain Shea and Captain Loveren are J. P.'s. \"The Court: Well, let me ask you, Chief, your answer is to the effect that you never go out of the department for the Justice of the Peace? \"The Witness: It hasn't been our\u2014policy to go out of the department. \"Q. Right. Your policy and experience, is to have a fellow police officer take the warrant in the capacity of Justice of the Peace? \"A. That has been our practice.\" *453 But it is too plain for extensive discussion that this now abandoned New Hampshire method of issuing \"search warrants\" violated a fundamental premise of both the Fourth and Fourteenth Amendments\u2014a premise fully developed and articulated long before this Court's decisions in Ker v. California, supra, and Mapp v. Ohio, 367 U.S. 643. As Mr. Justice Frankfurter put it in Wolf v. Colorado, 338 U.S. 25, 27-28: \"The security of one's privacy against arbitrary intrusion by the police\u2014which is at the core of the Fourth Amendment\u2014is basic to a free society. It is therefore implicit in `the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned . . . .\" We find no escape from the conclusion that the seizure and search of the Pontiac automobile cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in this case. Since he was not the neutral and detached magistrate required by the Constitution, the search stands on no firmer ground than if there had been no warrant at all. If the seizure and search are to be justified, they must, therefore, be justified on some other theory.\nII The State proposes three distinct theories to bring the facts of this case within one or another of the exceptions to the warrant requirement. In considering them, we must not lose sight of the Fourth Amendment's fundamental guarantee. Mr. Justice Bradley's admonition in his opinion for the Court almost a century ago in Boyd *454 v. United States, 116 U.S. 616, 635, is worth repeating here: \"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.\"[4] Thus the most basic constitutional rule in this area is that \"searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se *455 unreasonable under the Fourth Amendment\u2014subject only to a few specifically established and well-delineated exceptions.\"[5] The exceptions are \"jealously and carefully drawn,\"[6] and there must be \"a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.\"[7] \"[T]he burden is on those seeking the exemption to show the need for it.\"[8] In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or \"extravagant\" to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won\u2014by legal and constitutional means in England,[9] and by revolution on this continent\u2014a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.[10] A The State's first theory is that the seizure on February 19 and subsequent search of Coolidge's Pontiac were \"incident\" to a valid arrest. We assume that the arrest of Coolidge inside his house was valid, so that the first condition of a warrantless \"search incident\" is met. Whiteley v. Warden, 401 U.S. 560, 567 n. 11. And since the events in issue took place in 1964, we assess the State's argument *456 in terms of the law as it existed before Chimel v. California, 395 U.S. 752, which substantially restricted the \"search incident\" exception to the warrant requirement, but did so only prospectively. Williams v. United States, 401 U.S. 646. But even under pre-Chimel law, the State's position is untenable. The leading case in the area before Chimel was United States v. Rabinowitz, 339 U.S. 56, which was taken to stand \"for the proposition, inter alia, that a warrantless search `incident to a lawful arrest' may generally extend to the area that is considered to be in the `possession' or under the `control' of the person arrested.\" Chimel, supra, at 760. In this case, Coolidge was arrested inside his house; his car was outside in the driveway. The car was not touched until Coolidge had been removed from the scene. It was then seized and taken to the station, but it was not actually searched until two days later. First, it is doubtful whether the police could have carried out a contemporaneous search of the car under Rabinowitz standards. For this Court has repeatedly held that, even under Rabinowitz, \"[a] search may be incident to an arrest ` \"only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. . . .\" ' \" Vale v. Louisiana, 399 U.S. 30, 33, quoting from Shipley v. California, 395 U.S. 818, 819, quoting from Stoner v. California, 376 U.S. 483, 486. (Emphasis in Shipley.) Cf. Agnello v. United States, 269 U. S., at 30-31; James v. Louisiana, 382 U.S. 36. These cases make it clear beyond any question that a lawful pre-Chimel arrest of a suspect outside his house could never by itself justify a warrantless search inside the house. There is nothing in search-incident doctrine (as opposed to the special rules for automobiles and evidence in \"plain view,\" to be considered below) that suggests *457 a different result where the arrest is made inside the house and the search outside and at some distance away.[11] Even assuming, arguendo, that the police might have searched the Pontiac in the driveway when they arrested Coolidge in the house, Preston v. United States, 376 U.S. 364, makes plain that they could not legally seize the car, remove it, and search it at their leisure without a warrant. In circumstances virtually identical to those here, MR. JUSTICE BLACK'S opinion for a unanimous Court held that \"[o]nce an accused is under arrest and in custody, then a search [of his car] made at another place, without a warrant, is simply not incident to the arrest.\" Id., at 367. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 Cf. Chambers v. Maroney, 399 U.S. 42, 47. Search-incident doctrine, in short, has no applicability to this case.[12] *458 B The second theory put forward by the State to justify a warrantless seizure and search of the Pontiac car is that under Carroll v. United States, 267 U.S. 132, the police may make a warrantless search of an automobile whenever they have probable cause to do so, and, under our decision last Term in Chambers v. Maroney, 399 U.S. 42, whenever the police may make a legal contemporaneous search under Carroll, they may also seize the car, take it to the police station, and search it there. But even granting that the police had probable cause to search the car, the application of the Carroll case to these facts would extend it far beyond its original rationale. Carroll did indeed hold that \"contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant,\"[13] provided that \"the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.\"[14] Such searches had been explicitly authorized by Congress, and, as we have pointed out elsewhere,[15] in the conditions of the time \"[a]n automobile . . . was an almost indispensable instrumentality in large-scale violation of the National Prohibition Act, and the car itself therefore was treated somewhat as an offender and became contraband.\" In two later cases,[16] each involving an occupied automobile stopped on the open highway and searched for contraband *459 liquor, the Court followed and reaffirmed Carroll.[17] And last Term in Chambers, supra, we did so again. The underlying rationale of Carroll and of all the cases that have followed it is that there is \"a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, *460 for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.\" 267 U.S., at 153. (Emphasis supplied.) As we said in Chambers, supra, at 51, \"exigent circumstances\" justify the warrantless search of \"an automobile stopped on the highway,\" where there is probable cause, because the car is \"movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained.\" \"[T]he opportunity to search is fleeting . . . .\" (Emphasis supplied.) In this case, the police had known for some time of the probable role of the Pontiac car in the crime. Coolidge was aware that he was a suspect in the Mason murder, but he had been extremely cooperative throughout the investigation, and there was no indication that he meant to flee. He had already had ample opportunity to destroy any evidence he thought incriminating. There is no suggestion that, on the night in question, the car was being used for any illegal purpose, and it was regularly parked in the driveway of his house. The opportunity for search was thus hardly \"fleeting.\" The objects that the police are assumed to have had probable cause to search for in the car were neither stolen nor contraband nor dangerous. When the police arrived at the Coolidge house to arrest him, two officers were sent to guard the back door while the main party approached from the front. Coolidge was arrested inside the house, without resistance of any kind on his part, after he had voluntarily admitted the officers at both front and back doors. There was no way in which he could conceivably have gained access to the automobile after the police arrived on his property. When Coolidge had been taken away, the police informed Mrs. Coolidge, the only other adult occupant of the *461 house, that she and her baby had to spend the night elsewhere and that she could not use either of the Coolidge cars. Two police officers then drove her in a police car to the house of a relative in another town, and they stayed with her there until around midnight, long after the police had had the Pontiac towed to the station house. The Coolidge premises were guarded throughout the night by two policemen.[18] The word \"automobile\" is not a talisman in whose presence the Fourth Amendment fades away and disappears. *462 And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States\u2014no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where \"it is not practicable to secure a warrant,\" Carroll,supra, at 153, and the \"automobile exception,\" despite its label, is simply irrelevant.[19] *463 Since Carroll would not have justified a warrantless search of the Pontiac at the time Coolidge was arrested, the later search at the station house was plainly illegal, at least so far as the automobile exception is concerned. Chambers, supra, is of no help to the State, since that case held only that, where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station.[20] Rather, this case is controlled by Dyke v. Taylor Implement Mfg. Co., supra. There the police lacked probable cause to seize or search the defendant's automobile at the time of his *464 arrest, and this was enough by itself to condemn the subsequent search at the station house. Here there was probable cause, but no exigent circumstances justified the police in proceeding without a warrant. As in Dyke, the later search at the station house was therefore illegal.[21] C The State's third theory in support of the warrantless seizure and search of the Pontiac car is that the car itself was an \"instrumentality of the crime,\" and as such might be seized by the police on Coolidge's property because it was in plain view. Supposing the seizure to be thus lawful, the case of Cooper v. California, 386 U.S. 58, is said to support a subsequent warrantless search at the station house, with or without probable cause. Of course, the distinction between an \"instrumentality of crime\" and \"mere evidence\" was done away with by Warden v. Hayden, 387 U.S. 294, and we may assume that the police had probable cause to seize the automobile.[22] But, for the reasons that follow, we hold that the \"plain view\" exception to the warrant requirement is inapplicable to this case. Since the seizure was therefore *465 illegal, it is unnecessary to consider the applicability of Cooper, supra, to the subsequent search.[23] It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the \"plain view\" doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal. An example of the applicability of the \"plain view\" doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 358; United States v. Lefkowitz, 285 U.S. 452, 465; Steele v. United States, 267 U.S. 498; Stanley v. Georgia, 394 U.S. 557, 571 (STEWART, J., concurring in result). Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in \"hot pursuit\" of a fleeing suspect. Warden v. Hayden, supra; cf. Hester v. United States, 265 U.S. 57. And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant.[24]Chimel v. California, 395 *466 U. S., at 762-763. Finally, the \"plain view\" doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U.S. 234; Frazier v. Cupp, 394 U.S. 731; Ker v. California, 374 U. S., at 43. Cf. Lewis v. United States, 385 U.S. 206. What the \"plain view\" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification\u2014whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused\u2014and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the \"plain view\" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. *467 Cf. Stanley v. Georgia, supra, at 571-572 (STEWART, J., concurring in result). The rationale for the \"plain view\" exception is evident if we keep in mind the two distinct constitutional protections served by the warrant requirement. First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. See, e. g., McDonald v. United States, 335 U.S. 451; Warden v. Hayden, 387 U.S. 294; Katz v. United States, 389 U.S. 347; Chimel v. California, 395 U. S., at 761-762. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the \"general warrant\" abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. See, e. g., Boyd v. United States, 116 U. S., at 624-630; Marron v. United States, 275 U.S. 192, 195-196; Stanford v. Texas, 379 U.S. 476. The warrant accomplishes this second objective by requiring a \"particular description\" of the things to be seized. The \"plain view\" doctrine is not in conflict with the first objective because plain view does not occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or by an exception such as \"hot pursuit\" or search incident to a lawful arrest, or by an extraneous valid reason for the officer's presence. And, given the initial intrusion, the seizure of an object in plain view is consistent with the second objective, since it does not convert the search into a general or exploratory one. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where, once an otherwise lawful search is in progress, the police inadvertently come upon *468 a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous\u2014to the evidence or to the police themselves\u2014to require them to ignore it until they have obtained a warrant particularly describing it. The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent \"exigent circumstances.\" Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1; Johnson v. United States, 333 U.S. 10; McDonald v. United States, 335 U.S. 451; Jones v. United States, 357 U.S. 493, 497-498; Chapman v. United States, 365 U.S. 610; Trupiano v. United States, 334 U.S. 699.[25] *469 The second limitation is that the discovery of evidence in plain view must be inadvertent.[26] The rationale of the exception to the warrant requirement, as just stated, *470 is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a \"general\" one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as \"per se *471 unreasonable\" in the absence of \"exigent circumstances.\" If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of \"Warrants . . . particularly describing . . . [the] things to be seized.\" The initial intrusion may, of course, be legitimated not by a warrant but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects\u2014not contraband nor stolen nor dangerous in themselves\u2014which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.[27] *472 In the light of what has been said, it is apparent that the \"plain view\" exception cannot justify the police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid warrant; they knew the automobile's exact description and location well in advance; they intended to seize it when they came upon Coolidge's property. And this is not a case involving contraband or stolen goods or objects dangerous in themselves.[28] *473 The seizure was therefore unconstitutional, and so was the subsequent search at the station house. Since evidence obtained in the course of the search was admitted at Coolidge's trial, the judgment must be reversed and the case remanded to the New Hampshire Supreme Court. Mapp v. Ohio, 367 U.S. 643.\nD In his dissenting opinion today, MR. JUSTICE WHITE marshals the arguments that can be made against our interpretation of the \"automobile\" and \"plain view\" exceptions to the warrant requirement. Beyond the *474 unstartling proposition that when a line is drawn there is often not a great deal of difference between the situations closest to it on either side, there is a single theme that runs through what he has to say about the two exceptions. Since that theme is a recurring one in controversies over the proper meaning and scope of the Fourth Amendment, it seems appropriate to treat his views in this separate section, rather than piecemeal. Much the most important part of the conflict that has been so notable in this Court's attempts over a hundred years to develop a coherent body of Fourth Amendment law has been caused by disagreement over the importance of requiring law enforcement officers to secure warrants. Some have argued that a determination by a magistrate of probable cause as a precondition of any search or seizure is so essential that the Fourth Amendment is violated whenever the police might reasonably have obtained a warrant but failed to do so. Others have argued with equal force that a test of reasonableness, applied after the fact of search or seizure when the police attempt to introduce the fruits in evidence, affords ample safeguard for the rights in question, so that \"[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.\"[29] Both sides to the controversy appear to recognize a distinction between searches and seizures that take place on a man's property\u2014his home or office\u2014and those carried out elsewhere. It is accepted, at least as a matter of principle, that a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the *475 presence of \"exigent circumstances.\"[30] As to other kinds of intrusions, however, there has been disagreement about the basic rules to be applied, as our cases concerning automobile searches, electronic surveillance, street searches and administrative searches make clear.[31] With respect to searches and seizures carried out on a suspect's premises, the conflict has been over the question of what qualifies as an \"exigent circumstance.\" It might appear that the difficult inquiry would be when it is that the police can enter upon a person's property to seize his \"person . . . papers, and effects,\" without prior judicial approval. The question of the scope of search and seizure once the police are on the premises would appear to be subsidiary to the basic issue of when intrusion is permissible. But the law has not developed in this fashion. The most common situation in which Fourth Amendment issues have arisen has been that in which the police enter the suspect's premises, arrest him, and then carry out a warrantless search and seizure of evidence. Where there is a warrant for the suspect's arrest, the evidence seized may later be challenged either on the ground that the warrant was improperly issued because there was not probable cause,[32] or on the ground that the police search and seizure went beyond that which they could carry out as an incident to the execution of the arrest warrant.[33] Where the police act without an *476 arrest warrant, the suspect may argue that an arrest warrant was necessary, that there was no probable cause to arrest,[34] or that even if the arrest was valid, the search and seizure went beyond permissible limits.[35] Perhaps because each of these lines of attack offers a plethora of litigable issues, the more fundamental question of when the police may arrest a man in his house without a warrant has been little considered in the federal courts. This Court has chosen on a number of occasions to assume the validity of an arrest and decide the case before it on the issue of the scope of permissible warrantless search. E. g., Chimel v. California, supra. The more common inquiry has therefore been: \"Assuming a valid police entry for purposes of arrest, what searches and seizures may the police carry out without prior authorization by a magistrate?\" Two very broad, and sharply contrasting answers to this question have been assayed by this Court in the past. The answer of Trupiano v. United States, supra, was that no searches and seizures could be legitimated by the mere fact of valid entry for purposes of arrest, so long as there was no showing of special difficulties in obtaining a warrant for search and seizure. The contrasting answer in Harris v. United States, 331 U.S. 145, and United States v. Rabinowitz, supra, was that a valid entry for purposes of arrest served to legitimate warrantless searches and seizures throughout the premises where the arrest occurred, however spacious those premises might be. The approach taken in Harris and Rabinowitz was open to the criticism that it made it so easy for the police to arrange to search a man's premises without a warrant *477 that the Constitution's protection of a man's \"effects\" became a dead letter. The approach taken in Trupiano, on the other hand, was open to the criticism that it was absurd to permit the police to make an entry in the dead of night for purposes of seizing the \"person\" by main force, and then refuse them permission to seize objects lying around in plain sight. It is arguable that if the very substantial intrusion implied in the entry and arrest are \"reasonable\" in Fourth Amendment terms, then the less intrusive search incident to arrest must also be reasonable. This argument against the Trupiano approach is of little force so long as it is assumed that the police must, in the absence of one of a number of defined exceptions based on \"exigent circumstances,\" obtain an arrest warrant before entering a man's house to seize his person. If the Fourth Amendment requires a warrant to enter and seize the person, then it makes sense as well to require a warrant to seize other items that may be on the premises. The situation is different, however, if the police are under no circumstances required to obtain an arrest warrant before entering to arrest a person they have probable cause to believe has committed a felony. If no warrant is ever required to legitimate the extremely serious intrusion of a midnight entry to seize the person, then it can be argued plausibly that a warrant should never be required to legitimate a very sweeping search incident to such an entry and arrest. If the arrest without a warrant is per se reasonable under the Fourth Amendment, then it is difficult to perceive why a search incident in the style of Harris and Rabinowitz is not per se reasonable as well. It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that *478 searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined \"exigent circumstances.\" This conflict came to the fore in Chimel v. California, supra. The Court there applied the basic rule that the \"search incident to arrest\" is an exception to the warrant requirement and that its scope must therefore be strictly defined in terms of the justifying \"exigent circumstances.\" The exigency in question arises from the dangers of harm to the arresting officer and of destruction of evidence within the reach of the arrestee. Neither exigency can conceivably justify the far-ranging searches authorized under Harris and Rabinowitz. The answer of the dissenting opinion of MR. JUSTICE WHITE in Chimel, supported by no decision of this Court, was that a warrantless entry for the purpose of arrest on probable cause is legitimate and reasonable no matter what the circumstances. 395 U.S., at 776-780. From this it was said to follow that the full-scale search incident to arrest was also reasonable since it was a lesser intrusion. 395 U.S., at 772-775. The same conflict arises in this case. Since the police knew of the presence of the automobile and planned all along to seize it, there was no \"exigent circumstance\" to justify their failure to obtain a warrant. The application of the basic rule of Fourth Amendment law therefore requires that the fruits of the warrantless seizure be suppressed. MR. JUSTICE WHITE's dissenting opinion, however, argues once again that so long as the police could reasonably make a warrantless nighttime entry onto Coolidge's property in order to arrest him, with no showing at all of an emergency, then it is absurd to prevent them from seizing his automobile as evidence of the crime. MR. JUSTICE WHITE takes a basically similar approach to the question whether the search of the automobile in *479 this case can be justified under Carroll v. United States, supra, and Chambers v. Maroney, supra. Carroll, on its face, appears to be a classic example of the doctrine that warrantless searches are per se unreasonable in the absence of exigent circumstances. Every word in the opinion indicates the Court's adherence to the underlying rule and its care in delineating a limited exception. Read thus, the case quite evidently does not extend to the situation at bar. Yet if we take the viewpoint of a judge called on only to decide in the abstract, after the fact, whether the police have behaved \"reasonably\" under all the circumstances\u2014in short if we simply ignore the warrant requirement\u2014Carroll comes to stand for something more. The stopping of a vehicle on the open highway and a subsequent search amount to a major interference in the lives of the occupants. Carroll held such an interference to be reasonable without a warrant, given probable cause. It may be thought to follow a fortiori that the seizure and search here\u2014where there was no stopping and the vehicle was unoccupied\u2014were also reasonable, since the intrusion was less substantial, although there were no exigent circumstances whatever. Using reasoning of this sort, it is but a short step to the position that it is never necessary for the police to obtain a warrant before searching and seizing an automobile, provided that they have probable cause. And MR. JUSTICE WHITE appears to adopt exactly this view when he proposes that the Court should \"treat searches of automobiles as we do the arrest of a person.\" If we were to accept MR. JUSTICE WHITE'S view that warrantless entry for purposes of arrest and warrantless seizure and search of automobiles are per se reasonable, so long as the police have probable cause, it would be difficult to see the basis for distinguishing searches of houses and seizures of effects. If it is reasonable for the police to make a warrantless nighttime entry for the purpose *480 of arresting a person in his bed, then surely it must be reasonable as well to make a warrantless entry to search for and seize vital evidence of a serious crime. If the police may, without a warrant, seize and search an unoccupied vehicle parked on the owner's private property, not being used for any illegal purpose, then it is hard to see why they need a warrant to seize and search a suitcase, a trunk, a shopping bag, or any other portable container in a house, garage, or back yard. The fundamental objection, then, to the line of argument adopted by MR. JUSTICE WHITE in his dissent in this case and in Chimel v. California, supra, is that it proves too much. If we were to agree with MR. JUSTICE WHITE that the police may, whenever they have probable cause, make a warrantless entry for the purpose of making an arrest, and that seizures and searches of automobiles are likewise per se reasonable given probable cause, then by the same logic any search or seizure could be carried out without a warrant, and we would simply have read the Fourth Amendment out of the Constitution. Indeed, if MR. JUSTICE WHITE is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man's house for purposes of arrest, it might be wise to re-examine the assumption. Such a re-examination \"would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.\" Jones v. United States, 357 U. S., at 499-500. None of the cases cited by MR. JUSTICE WHITE disposes of this \"grave constitutional question.\" The case of Warden v. Hayden, supra, where the Court elaborated *481 a \"hot pursuit\" justification for the police entry into the defendant's house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances. See also Davis v. Mississippi, 394 U.S. 721, 728; Wong Sun v. United States, 371 U. S., at 481-482. The Court of Appeals for the District of Columbia Circuit, sitting en banc, has unanimously reached the same conclusion.[36] But we find it unnecessary to decide the question in this case. The rule that \"searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment\u2014subject only to a few specifically established and well-delineated exceptions,\"[37] is not so frail that its continuing vitality depends on the fate of a supposed doctrine of warrantless arrest. The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow \"weighed\" against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the \"well-intentioned but mistakenly over-zealous executive officers\"[38] who are a part of any system of law enforcement. If it is to be a true guide to constitutional police action, rather than just a pious phrase, then \"[t]he exceptions cannot be enthroned into the rule.\" United States v. Rabinowitz, supra, at 80 (Frankfurter, J., dissenting). The confinement of the exceptions to their appropriate scope was the function of Chimel v. California, supra, where we dealt with the *482 assumption that a search \"incident\" to a lawful arrest may encompass all of the premises where the arrest occurs, however spacious. The \"plain view\" exception is intimately linked with the search-incident exception, as the cases discussed in Part C above have repeatedly shown. To permit warrantless plain-view seizures without limit would be to undo much of what was decided in Chimel, as the similar arguments put forward in dissent in the two cases indicate clearly enough. Finally, a word about Trupiano v. United States, supra. Our discussion of \"plain view\" in Part C above corresponds with that given in Trupiano. Here, as in Trupiano, the determining factors are advance police knowledge of the existence and location of the evidence, police intention to seize it, and the ample opportunity for obtaining a warrant. See 334 U.S., at 707-708 and n. 27, supra. However, we do not \"reinstate\" Trupiano, since we cannot adopt all its implications. To begin with, in Chimel v. California, supra, we held that a search of the person of an arrestee and of the area under his immediate control could be carried out without a warrant. We did not indicate there, and do not suggest here, that the police must obtain a warrant if they anticipate that they will find specific evidence during the course of such a search. See n. 24, supra. And as to the automobile exception, we do not question the decisions of the Court in Cooper v. California, 386 U.S. 58, and Chambers v. Maroney, supra, although both are arguably inconsistent with Trupiano. MR. JUSTICE WHITE'S dissent characterizes the coexistence of Chimel, Cooper, Chambers, and this case as \"punitive,\" \"extravagant,\" \"inconsistent,\" \"without apparent reason,\" \"unexplained,\" and \"inexplicable.\" Post, at 517, 519, 521. It is urged upon us that we have here a \"ready opportunity, one way or another, *483 to bring clarity and certainty to a body of law that lower courts and law enforcement officials often find confusing.\" Post, at 521. Presumably one of the ways in which MR. JUSTICE WHITE believes we might achieve clarity and certainty would be the adoption of his proposal that we treat entry for purposes of arrest and seizure of an automobile alike as per se reasonable on probable cause. Such an approach might dispose of this case clearly and certainly enough, but, as we have tried to show above, it would cast into limbo the whole notion of a Fourth Amendment warrant requirement. And it is difficult to take seriously MR. JUSTICE WHITE'S alternative suggestion that clarity and certainty, as well as coherence and credibility, might also be achieved by modifying Chimel and overruling Chambers and Cooper. Surely, quite apart from his strong disagreement on the merits, he would take vehement exception to any such cavalier treatment of this Court's decisions. Of course, it would be nonsense to pretend that our decision today reduces Fourth Amendment law to complete order and harmony. The decisions of the Court over the years point in differing directions and differ in emphasis. No trick of logic will make them all perfectly consistent. But it is no less nonsense to suggest, as does MR. JUSTICE WHITE, post, at 521, 520, that we cease today \"to strive for clarity and consistency of analysis,\" or that we have \"abandoned any attempt\" to find reasoned distinctions in this area. The time is long past when men believed that development of the law must always proceed by the smooth incorporation of new situations into a single coherent analytical framework. We need accept neither the \"clarity and certainty\" of a Fourth Amendment without a warrant requirement nor the facile consistency obtained by wholesale overruling of recently decided cases. A remark by *484 MR. JUSTICE HARLAN concerning the Fifth Amendment is applicable as well to the Fourth: \"There are those, I suppose, who would put the `liberal construction' approach of cases like Miranda [v. Arizona, 384 U.S. 436,] and Boyd v. United States, 116 U.S. 616 (1886), side-by-side with the balancing approach of Schmerber [v. California, 384 U.S. 757,] and perceive nothing more subtle than a set of constructional antinomies to be utilized as convenient bootstraps to one result or another. But I perceive in these cases the essential tension that springs from the uncertain mandate which this provision of the Constitution gives to this Court.\" California v. Byers, 402 U.S. 424, 449-450 (concurring in judgment). We are convinced that the result reached in this case is correct, and that the principle it reflects\u2014that the police must obtain a warrant when they intend to seize an object outside the scope of a valid search incident to arrest\u2014can be easily understood and applied by courts and law enforcement officers alike. It is a principle that should work to protect the citizen without overburdening the police, and a principle that preserves and protects the guarantees of the Fourth Amendment.\nIII Because of the prospect of a new trial, the efficient administration of justice counsels consideration of the second substantial question under the Fourth and Fourteenth Amendments presented by this case. The petitioner contends that when the police obtained a rifle and articles of his clothing from his home on the night of Sunday, February 2, 1964, while he was being interrogated at the police station, they engaged in a search and seizure violative of the Constitution. In order to *485 understand this contention, it is necessary to review in some detail the circumstances of the February 2 episode.\nA The lie-detector test administered to Coolidge in Concord on the afternoon of the 2d was inconclusive as to his activities on the night of Pamela Mason's disappearance, but during the course of the test Coolidge confessed to stealing $375 from his employer. After the group returned from Concord to Manchester, the interrogation about Coolidge's movements on the night of the disappearance continued, and Coolidge apparently made a number of statements which the police immediately checked out as best they could. The decision to send two officers to the Coolidge house to speak with Mrs. Coolidge was apparently motivated in part by a desire to check his story against whatever she might say, and in part by the need for some corroboration of his admission to the theft from his employer. The trial judge found as a fact, and the record supports him, that at the time of the visit the police knew very little about the weapon that had killed Pamela Mason. The bullet that had been retrieved was of small caliber, but the police were unsure whether the weapon was a rifle or a pistol. During the extensive investigation following the discovery of the body, the police had made it a practice to ask all those questioned whether they owned any guns, and to ask the owners for permission to run tests on those that met the very general description of the murder weapon. The trial judge found as a fact that when the police visited Mrs. Coolidge on the night of the 2d, they were unaware of the previous visit during which Coolidge had shown other officers three guns, and that they were not motivated by a desire to find the murder weapon. *486 The two plainclothesmen asked Mrs. Coolidge whether her husband had been at home on the night of the murder victim's disappearance, and she replied that he had not. They then asked her if her husband owned any guns. According to her testimony at the pretrial suppression hearing, she replied, \"Yes, I will get them in the bedroom.\" One of the officers replied, \"We will come with you.\" The three went into the bedroom where Mrs. Coolidge took all four guns out of the closet. Her account continued: \"A. I believe I asked if they wanted the guns. One gentleman said, `No'; then the other gentleman turned around and said, `We might as well take them.' I said, `If you would like them, you may take them.' \"Q. Did you go further and say, `We have nothing to hide.'? \"A. I can't recall if I said that then or before. I don't recall. \"Q. But at some time you indicated to them that as far as you were concerned you had nothing to hide, and they might take what they wanted? \"A. That was it. ..... \"Q. Did you feel at that time that you had something to hide? \"A. No.\" The two policemen also asked Mrs. Coolidge what her husband had been wearing on the night of the disappearance. She then produced four pairs of trousers and indicated that her husband had probably worn either of two of them on that evening. She also brought out a hunting jacket. The police gave her a receipt for the guns and the clothing, and, after a search of the Coolidge cars not here in issue, took the various articles to the police station.\n*487 B The first branch of the petitioner's argument is that when Mrs. Coolidge brought out the guns and clothing, and then handed them over to the police, she was acting as an \"instrument\" of the officials, complying with a \"demand\" made by them. Consequently, it is argued, Coolidge was the victim of a search and seizure within the constitutional meaning of those terms. Since we cannot accept this interpretation of the facts, we need not consider the petitioner's further argument that Mrs. Coolidge could not or did not \"waive\" her husband's constitutional protection against unreasonable searches and seizures. Had Mrs. Coolidge, wholly on her own initiative, sought out her husband's guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. Cf. Burdeau v. McDowell, 256 U.S. 465. The question presented here is whether the conduct of the police officers at the Coolidge house was such as to make her actions their actions for purposes of the Fourth and Fourteenth Amendments and their attendant exclusionary rules. The test, as the petitioner's argument suggests, is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded as having acted as an \"instrument\" or agent of the state when she produced her husband's belongings. Cf. United States v. Goldberg, 330 F.2d 30 (CA3), cert. denied, 377 U.S. 953 (1964); People v. Tarantino, 45 Cal. 2d 590, 290 P.2d 505 (1955); see Byars v. United States, 273 U.S. 28; Gambino v. United States, 275 U.S. 310. In a situation like the one before us there no doubt always exist forces pushing the spouse to cooperate with *488 the police. Among these are the simple but often powerful convention of openness and honesty, the fear that secretive behavior will intensify suspicion, and uncertainty as to what course is most likely to be helpful to the absent spouse. But there is nothing constitutionally suspect in the existence, without more, of these incentives to full disclosure or active cooperation with the police. The exclusionary rules were fashioned \"to prevent, not to repair,\" and their target is official misconduct. They are \"to compel respect for the constitutional guaranty in the only effectively available way\u2014by removing the incentive to disregard it.\" Elkins v. United States, 364 U.S. 206, 217. But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. If, then, the exclusionary rule is properly applicable to the evidence taken from the Coolidge house on the night of February 2, it must be upon the basis that some type of unconstitutional police conduct occurred. Yet it cannot be said that the police should have obtained a warrant for the guns and clothing before they set out to visit Mrs. Coolidge, since they had no intention of rummaging around among Coolidge's effects or of dispossessing him of any of his property. Nor can it be said that they should have obtained Coolidge's permission for a seizure they did not intend to make. There was nothing to compel them to announce to the suspect that they intended to question his wife about his movements on the night of the disappearance or about the theft from his employer. Once Mrs. Coolidge had admitted them, the policemen were surely acting normally and properly when they asked her, as they had asked those questioned earlier in the investigation, including Coolidge himself, about any guns there might be in the house. The question *489 concerning the clothes Coolidge had been wearing on the night of the disappearance was logical and in no way coercive. Indeed, one might doubt the competence of the officers involved had they not asked exactly the questions they did ask. And surely when Mrs. Coolidge of her own accord produced the guns and clothes for inspection, rather than simply describing them, it was not incumbent on the police to stop her or avert their eyes. The crux of the petitioner's argument must be that when Mrs. Coolidge asked the policemen whether they wanted the guns, they should have replied that they could not take them, or have first telephoned Coolidge at the police station and asked his permission to take them, or have asked her whether she had been authorized by her husband to release them. Instead, after one policeman had declined the offer, the other turned and said, \"We might as well take them,\" to which Mrs. Coolidge replied, \"If you would like them, you may take them.\" In assessing the claim that this course of conduct amounted to a search and seizure, it is well to keep in mind that Mrs. Coolidge described her own motive as that of clearing her husband, and that she believed that she had nothing to hide. She had seen her husband himself produce his guns for two other policemen earlier in the week, and there is nothing to indicate that she realized that he had offered only three of them for inspection on that occasion. The two officers who questioned her behaved, as her own testimony shows, with perfect courtesy. There is not the slightest implication of an attempt on their part to coerce or dominate her, or, for that matter, to direct her actions by the more subtle techniques of suggestion that are available to officials in circumstances like these. To hold that the conduct of the police here was a search and seizure would be to hold, in effect, that a criminal suspect has constitutional protection against *490 the adverse consequences of a spontaneous, good-faith effort by his wife to clear him of suspicion.[39] The judgment is reversed and the case is remanded to the Supreme Court of New Hampshire for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE HARLAN, concurring. From the several opinions that have been filed in this case it is apparent that the law of search and seizure is due for an overhauling. State and federal law enforcement officers and prosecutorial authorities must find quite intolerable the present state of uncertainty, which extends even to such an everyday question as the circumstances under which police may enter a man's property to arrest him and seize a vehicle believed to have been used during the commission of a crime. I would begin this process of re-evaluation by overruling Mapp v. Ohio, 367 U.S. 643 (1961), and Ker v. California, 374 U.S. 23 (1963). The former of these cases made the federal \"exclusionary rule\" applicable to the States. The latter forced the States to follow all the ins and outs of this Court's Fourth Amendment decisions, handed down in federal cases. In combination Mapp and Ker have been primarily responsible for bringing about serious distortions and incongruities in this field of constitutional law. Basically these have had two aspects, as I believe an examination of our more recent opinions and certiorari docket will show. First, the States have been put in a federal mold with respect to this aspect of criminal law enforcement, thus depriving the country of the opportunity to observe *491 the effects of different procedures in similar settings. See, e. g., Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970), suggesting that the assumed \"deterrent value\" of the exclusionary rule has never been adequately demonstrated or disproved, and pointing out that because of Mapp all comparative statistics are 10 years old and no new ones can be obtained. Second, in order to leave some room for the States to cope with their own diverse problems, there has been generated a tendency to relax federal requirements under the Fourth Amendment, which now govern state procedures as well. For an illustration of that tendency in another constitutional field, again resulting from the infelicitous \"incorporation\" doctrine, see Williams v. Florida, 399 U.S. 78 (1970). Until we face up to the basic constitutional mistakes of Mapp and Ker, no solid progress in setting things straight in search and seizure law will, in my opinion, occur. But for Mapp and Ker, I would have little difficulty in voting to sustain this conviction, for I do not think that anything the State did in this case could be said to offend those values which are \"at the core of the Fourth Amendment.\" Wolf v. Colorado, 338 U.S. 25, 27 (1949); cf. Irvine v. California, 347 U.S. 128 (1954); Rochin v. California, 342 U.S. 165 (1952). Because of Mapp and Ker, however, this case must be judged in terms of federal standards, and on that basis I concur, although not without difficulty, in Parts I, II-D, and III of the Court's opinion and in the judgment of the Court.[*] It must be recognized that the case is a close one. The reason I am tipped in favor of MR. JUSTICE *492 STEWART'S position is that a contrary result in this case would, I fear, go far toward relegating the warrant requirement of the Fourth Amendment to a position of little consequence in federal search and seizure law, a course which seems to me opposite to the one we took in Chimel v. California, 395 U.S. 752 (1969), two Terms ago. Recent scholarship has suggested that in emphasizing the warrant requirement over the reasonableness of the search the Court has \"stood the fourth amendment on its head\" from a historical standpoint. T. Taylor, Two Studies in Constitutional Interpretation 23-24 (1969). This issue is perhaps most clearly presented in the case of a warrantless entry into a man's home to arrest him on probable cause. The validity of such entry was left open in Jones v. United States, 357 U.S. 493, 499-500 (1958), and although my Brothers WHITE and STEWART both feel that their contrary assumptions on this point are at the root of their disagreement in this case, ante, at 477-479; post, at 510-512, 521, the Court again leaves the issue open. Ante, at 481. In my opinion it does well to do so. This matter should not be decided in a state case not squarely presenting the issue and where it was not fully briefed and argued. I intimate no view on this subject, but until it is ripe for decision, I hope in a federal case, I am unwilling to lend my support to setting back the trend of our recent decisions. MR. CHIEF JUSTICE BURGER, dissenting in part and concurring in part. I join the dissenting opinion of MR. JUSTICE WHITE and in Parts II and III of MR. JUSTICE BLACK'S concurring and dissenting opinion. I also agree with most of what is said in Part I of MR. JUSTICE BLACK'S opinion, but I am not prepared to accept the proposition that the Fifth Amendment requires the exclusion of evidence *493 seized in violation of the Fourth Amendment. I join in Part III of MR. JUSTICE STEWART'S opinion. This case illustrates graphically the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves. See my dissent in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, ante, p. 411. On the merits of the case I find not the slightest basis in the record to reverse this conviction. Here again the Court reaches out, strains, and distorts rules that were showing some signs of stabilizing, and directs a new trial which will be held more than seven years after the criminal acts charged. Mr. Justice Stone, of the Minnesota Supreme Court, called the kind of judicial functioning in which the Court indulges today \"bifurcating elements too infinitesimal to be split.\" MR. JUSTICE BLACK, concurring and dissenting. After a jury trial in a New Hampshire state court, petitioner was convicted of murder and sentenced to life imprisonment. Holding that certain evidence introduced by the State was seized during an \"unreasonable\" search and that the evidence was inadmissible under the judicially created exclusionary rule of the Fourth Amendment, the majority reverses that conviction. Believing that the search and seizure here was reasonable and that the Fourth Amendment properly construed contains no such exclusionary rule, I dissent. The relevant facts are these. Pamela Mason, a 14-year-old school girl, lived with her mother and younger brother in Manchester, New Hampshire. She occasionally worked after school as a babysitter and sought such work by posting a notice on a bulletin board in a local laundromat. On January 13, 1964, she arrived home from school about 4:15 p. m. Pamela's mother told her *494 that a man had called seeking a babysitter for that evening and said that he would call again later. About 4:30 p. m., after Pamela's mother had left for her job as a waitress at a nearby restaurant, Pamela received a phone call. Her younger brother, who answered the call but did not overhear the conversation, later reported that the caller was a man. After the call, Pamela prepared dinner for her brother and herself, then left the house about 6 p. m. Her family never again saw her alive. Eight days later, on January 21, 1964, Pamela's frozen body was discovered in a snowdrift beside an interstate highway a few miles from her home. Her throat had been slashed and she had been shot in the head. Medical evidence showed that she died some time between 8 and 10 p. m. on January 13, the night she left home. A manhunt ensued. Two witnesses informed the police that about 9:30 p. m. on the night of the murder they had stopped to offer assistance to a man in a 1951 Pontiac automobile which was parked beside the interstate highway near the point where the little girl's dead body was later found. Petitioner came under suspicion seven days after the body was discovered when one of his neighbors reported to the police that petitioner had been absent from his home between 5 and 11 p. m. on January 13, the night of the murder. Petitioner owned a 1951 Pontiac automobile that matched the description of the car which the two witnesses reported seeing parked where the girl's body had been found. The police first talked with petitioner at his home on the evening of January 28, fifteen days after the girl was killed, and arranged for him to come to the police station the following Sunday, February 2, 1964. He went to the station that Sunday and answered questions concerning his activities on the night of the murder, telling the police that he had been shopping in a neighboring town at the *495 time the murder was committed. During questioning, petitioner confessed to having committed an unrelated larceny from his employer and was held overnight at the police station in connection with that offense. On the next day, he was permitted to go home. While petitioner was being questioned at the police station on February 2, two policemen went to petitioner's home to talk with his wife. They asked what firearms the petitioner owned and his wife produced two shotguns and two rifles which she voluntarily offered to the police. Upon examination the University of Rhode Island Criminal Investigation Laboratory concluded that one of the firearms, a Mossberg .22-caliber rifle, had fired the bullet found in the murdered girl's brain. Petitioner admitted that he was a frequent visitor to the laundromat where Pamela posted her babysitting notice and that he had been there on the night of the murder. The following day a knife belonging to petitioner, which could have inflicted the murdered girl's knife wounds, was found near that laundromat. The police also learned that petitioner had unsuccessfully contacted four different persons before the girl's body had been discovered in an attempt to fabricate an alibi for the night of January 13. On February 19, 1964, all this evidence was presented to the state attorney general who was authorized under New Hampshire law to issue arrest and search warrants. The attorney general considered the evidence and issued a warrant for petitioner's arrest and four search warrants including a warrant for the seizure and search of petitioner's Pontiac automobile. On the day the warrants issued, the police went to the petitioner's residence and placed him under arrest. They took charge of his 1951 Pontiac which was parked in plain view in the driveway in front of the house, and, two hours later, towed the car to the police station. *496 During the search of the automobile at the station, the police obtained vacuum sweepings of dirt and other fine particles which matched like sweepings taken from the clothes of the murdered girl. Based on the similarity between the sweepings taken from petitioner's automobile and those taken from the girl's clothes, experts who testified at trial concluded that Pamela had been in the petitioner's car. The rifle given to the police by petitioner's wife was also received in evidence. Petitioner challenges his conviction on the ground that the rifle obtained from his wife and the vacuum sweepings taken from his car were seized in violation of the Fourth Amendment and were improperly admitted at trial. With respect to the rifle voluntarily given to the police by petitioner's wife, the majority holds that it was properly received in evidence. I agree. But the Court reverses petitioner's conviction on the ground that the sweepings taken from his car were seized during an illegal search and for this reason the admission of the sweepings into evidence violated the Fourth Amendment. I dissent.\nI The Fourth Amendment prohibits unreasonable searches and seizures. The Amendment says nothing about consequences. It certainly nowhere provides for the exclusion of evidence as the remedy for violation. The Amendment states: \"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\" No examination of that text can find an exclusionary rule by a mere process of construction. Apparently the first suggestion that the Fourth Amendment somehow embodied a rule of evidence came *497 in Justice Bradley's majority opinion in Boyd v. United States, 116 U.S. 616 (1886). The holding in that case was that ordinarily a person may not be compelled to produce his private books and papers for use against him as proof of crime. That decision was a sound application of accepted principles of common law and the command of the Fifth Amendment that no person shall be compelled to be a witness against himself. But Justice Bradley apparently preferred to formulate a new exclusionary rule from the Fourth Amendment rather than rely on the already existing exclusionary rule contained in the language of the Fifth Amendment. His opinion indicated that compulsory production of such evidence at trial violated the Fourth Amendment. Mr. Justice Miller, with whom Chief Justice Waite joined, concurred solely on the basis of the Fifth Amendment, and explicitly refused to go along with Justice Bradley's novel reading of the Fourth Amendment. It was not until 1914, some 28 years after Boyd and when no member of the Boyd Court remained, that the Court in Weeks v. United States, 232 U.S. 383, stated that the Fourth Amendment itself barred the admission of evidence seized in violation of the Fourth Amendment. The Weeks opinion made no express confession of a break with the past. But if it was merely a proper reading of the Fourth Amendment, it seems strange that it took this Court nearly 125 years to discover the true meaning of those words. The truth is that the source of the exclusionary rule simply cannot be found in the Fourth Amendment. That Amendment did not when adopted, and does not now, contain any constitutional rule barring the admission of illegally seized evidence. In striking contrast to the Fourth Amendment, the Fifth Amendment states in express, unambiguous terms that no person \"shall be compelled in any criminal case *498 to be a witness against himself.\" The Fifth Amendment in and of itself directly and explicitly commands its own exclusionary rule\u2014a defendant cannot be compelled to give evidence against himself. Absent congressional action taken pursuant to the Fourth Amendment, if evidence is to be excluded, it must be under the Fifth Amendment, not the Fourth. That was the point so ably made in the concurring opinion of Justice Miller, joined by Chief Justice Waite, in Boyd v. United States, supra, and that was the thrust of my concurring opinion in Mapp v. Ohio, 367 U.S. 643, 661 (1961). The evidence seized by breaking into Mrs. Mapp's house and the search of all her possessions, was excluded from evidence, not by the Fourth Amendment which contains no exclusionary rule, but by the Fifth Amendment which does. The introduction of such evidence compels a man to be a witness against himself, and evidence so compelled must be excluded under the Fifth Amendment, not because the Court says so, but because the Fifth Amendment commands it. The Fourth Amendment provides a constitutional means by which the Government can act to obtain evidence to be used in criminal prosecutions. The people are obliged to yield to a proper exercise of authority under that Amendment.[1] Evidence properly seized under the Fourth Amendment, of course, is admissible at trial. But nothing in the Fourth Amendment provides that evidence seized in violation of that Amendment must be excluded. The majority holds that evidence it views as improperly seized in violation of its ever changing concept of the Fourth Amendment is inadmissible. The majority *499 treats the exclusionary rule as a judge-made rule of evidence designed and utilized to enforce the majority's own notions of proper police conduct. The Court today announces its new rules of police procedure in the name of the Fourth Amendment, then holds that evidence seized in violation of the new \"guidelines\" is automatically inadmissible at trial. The majority does not purport to rely on the Fifth Amendment to exclude the evidence in this case. Indeed, it could not. The majority prefers instead to rely on \"changing times\" and the Court's role as it sees it, as the administrator in charge of regulating the contacts of officials with citizens. The majority states that in the absence of a better means of regulation, it applies a court-created rule of evidence. I readily concede that there is much recent precedent for the majority's present announcement of yet another new set of police operating procedures. By invoking this rulemaking power found not in the words but somewhere in the \"spirit\" of the Fourth Amendment, the Court has expanded that Amendment beyond recognition. And each new step is justified as merely a logical extension of the step before. It is difficult for me to believe the Framers of the Bill of Rights intended that the police be required to prove a defendant's guilt in a \"little trial\" before the issuance of a search warrant. But see Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969). No such proceeding was required before or after the adoption of the Fourth Amendment, until this Court decided Aguilar and Spinelli. Likewise, eavesdroppers were deemed to be competent witnesses in both English and American courts up until this Court in its Fourth Amendment \"rulemaking\" capacity undertook to lay down rules for electronic surveillance. Berger v. New York, 388 U.S. 41, 70 (1967) (BLACK, J., dissenting); Katz v. United States, 389 U.S. 347, 364 (1967) (BLACK, J., dissenting). *500 The reasonableness of a search incident to an arrest, extending to areas under the control of the defendant and areas where evidence may be found, was an established tenet of English common law, and American constitutional law after adoption of the Fourth Amendment \u2014that is, until Chimel v. California, 395 U.S. 752 (1969). The broad, abstract, and ambiguous concept of \"privacy\" is now unjustifiably urged as a comprehensive substitute for the Fourth Amendment's guarantee against \"unreasonable searches and seizures.\" Griswold v. Connecticut, 381 U.S. 479 (1965). Our Government is founded upon a written Constitution. The draftsmen expressed themselves in careful and measured terms corresponding with the immense importance of the powers delegated to them. The Framers of the Constitution, and the people who adopted it, must be understood to have used words in their natural meaning, and to have intended what they said. The Constitution itself contains the standards by which the seizure of evidence challenged in the present case and the admissibility of that evidence at trial is to be measured in the absence of congressional legislation. It is my conclusion that both the seizure of the rifle offered by petitioner's wife and the seizure of the automobile at the time of petitioner's arrest were consistent with the Fourth Amendment and that the evidence so obtained under the circumstances shown in the record in this case could not be excluded under the Fifth Amendment.\nII The majority holds that the warrant authorizing the seizure and search of petitioner's automobile was constitutionally defective and void. With respect to search warrants, the Fourth Amendment provides that \"no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place *501 to be searched, and the persons or things to be seized.\" The majority concedes that the police did show probable cause for the issuance of the warrant. The majority does not contest that the warrant particularly described the place to be searched, and the thing to be seized. But compliance with state law and the requirements of the Fourth Amendment apparently is not enough. The majority holds that the state attorney general's connection with the investigation automatically rendered the search warrant invalid. In the first place, there is no language in the Fourth Amendment which provides any basis for the disqualification of the state attorney general to act as a magistrate. He is a state official of high office. The Fourth Amendment does not indicate that his position of authority over state law enforcement renders him ineligible to issue warrants upon a showing of probable cause supported by oath or affirmation. The majority's argument proceeds on the \"little trial\" theory that the magistrate is to sit as a judge and weigh the evidence and practically determine guilt or innocence before issuing a warrant. There is nothing in the Fourth Amendment to support such a magnified view of the magistrate's authority. The state attorney general was not barred by the Fourth Amendment or any other constitutional provision from issuing the warrant. In the second place, the New Hampshire Supreme Court held in effect that the state attorney general's participation in the investigation of the case at the time he issued the search warrant was \"harmless error\" if it was error at all. I agree. It is difficult to imagine a clearer showing of probable cause. There was no possibility of prejudice because there was no room for discretion. Indeed, it could be said that a refusal to issue a warrant on the showing of probable cause made in this case would have been an abuse of discretion. In light *502 of the showing made by the police, there is no reasonable possibility that the state attorney general's own knowledge of the investigation contributed to the issuance of the warrant. I see no error in the state attorney general's action. But even if there was error, it was harmless beyond reasonable doubt. See Harrington v. California, 395 U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967). Therefore, it is my conclusion that the warrant authorizing the seizure and search of petitioner's automobile was constitutional under the Fourth Amendment, and that the evidence obtained during that search cannot be excluded under the Fifth Amendment. Moreover, I am of the view that, even if the search warrant had not issued, the search in this case nonetheless would have been constitutional under all three of the principles considered and rejected by the majority.\nIII It is important to point out that the automobile itself was evidence and was seized as such. Prior to the seizure the police had been informed by two witnesses that on the night of the murder they had seen an automobile parked near the point where the little girl's dead body was later discovered. Their description of the parked automobile matched petitioner's car. At the time of the seizure the identification of petitioner's automobile by the witnesses as the car they had seen on the night of the murder was yet to be made. The police had good reason to believe that the identification would be an important element of the case against the petitioner. Preservation of the automobile itself as evidence was a reasonable motivation for its seizure. Considered in light of the information in the hands of the New Hampshire police at the time of the seizure, I conclude that the seizure and search were constitutional, even had there been no search warrant, for the following among other reasons.\n*503 A First, the seizure of petitioner's automobile was valid as incident to a lawful arrest. The majority concedes that there was probable cause for petitioner's arrest. Upon arriving at petitioner's residence to make that arrest, the police saw petitioner's automobile which they knew fitted the description of the car observed by two witnesses at the place where the murdered girl's body had been found. The police arrested the petitioner and seized the automobile. The majority holds that because the police had to go into petitioner's residence in order to place petitioner under arrest, the contemporaneous seizure of the automobile outside the house was not incident to that arrest. I cannot accept this elevation of form over reason. After stating that Chimel v. California, 395 U.S. 752 (1969), is inapplicable to this case, the majority goes on to formulate and apply a per se rule reaching far beyond Chimel. To do so, the majority employs a classic non sequitur. Because this Court has held that police arresting a defendant on the street in front of his house cannot go into that house and make a general search, it follows, says the majority, that the police having entered a house to make an arrest cannot step outside the house to seize clearly visible evidence. Even though the police, upon entering a doorway to make a valid arrest, would be authorized under the pre-Chimel law the majority purports to apply, to make a five-hour search of a four-room apartment, see Harris v. United States, 331 U.S. 145 (1947), the majority holds that the police could not step outside the doorway to seize evidence they passed on their way in. The majority reasons that as the doorway locks the policeman out, once entered, it must lock him in. The test of reasonableness cannot be governed by such arbitrary rules. Each case must be judged on its *504 own particular facts. Here, there was no general exploration, only a direct seizure of important evidence in plain view from both inside as well as outside the house. On the facts of this case, it is my opinion that the seizure of petitioner's automobile was incident to his arrest and was reasonable under the terms of the Fourth Amendment.\nB Moreover, under our decision last Term in Chambers v. Maroney, 399 U.S. 42 (1970), the police were entitled not only to seize petitioner's car but also to search the car after it had been taken to the police station. The police had probable cause to believe that the car had been used in the commission of the murder and that it contained evidence of the crime. Under Carroll v. United States, 267 U.S. 132 (1925), and Chambers v. Maroney, supra, such belief was sufficient justification for the seizure and the search of petitioner's automobile. The majority reasons that the Chambers and Carroll rationale, based on the mobility of automobiles, is inapplicable here because the petitioner's car could have been placed under guard and, thereby, rendered immobile. But this Court explicitly rejected such reasoning in Chambers: \"For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. . . . The probable-cause factor still obtained at the station house and so did the mobility of the car . . . .\" 399 U.S., at 52. This Court held there that the delayed search at the station house, as well as an immediate search at the time of seizure, was reasonable under the Fourth Amendment. As a second argument for holding that the Chambers decision does not apply to this case, the majority reasons that the evidence could not have been altered or the car *505 moved because petitioner was in custody and his wife was accompanied by police, at least until the police towed the car to the station. But the majority's reasoning depends on two assumptions: first, that the police should, or even could, continue to keep petitioner's wife effectively under house arrest; and, second, that no one else had any motivation to alter or remove the car. I cannot accept the first assumption, nor do I believe that the police acted unreasonably in refusing to accept the second.[2] C I believe the seizure of petitioner's automobile was valid under the well-established right of the police to seize evidence in plain view at the time and place of arrest. The majority concedes that the police were rightfully at petitioner's residence to make a valid arrest at *506 the time of the seizure. To use the majority's words, the \"initial intrusion\" which brought the police within plain view of the automobile was legitimate. The majority also concedes that the automobile was \"plainly visible both from the street and from inside the house where Coolidge was actually arrested,\" ante, at 448, and that the automobile itself was evidence which the police had probable cause to seize. Ante, at 464. Indeed, the majority appears to concede that the seizure of petitioner's automobile was valid under the doctrine upholding seizures of evidence in plain view at the scene of arrest, at least as it stood before today. Ante, at 465-466, n. 24. However, even after conceding that petitioner's automobile itself was evidence of the crime, that the police had probable cause to seize it as such, and that the automobile was in plain view at the time and place of arrest, the majority holds the seizure to be a violation of the Fourth Amendment because the discovery of the automobile was not \"inadvertent.\" The majority confidently states: \"What the `plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.\" But the prior holdings of this Court not only fail to support the majority's statement, they flatly contradict it. One need look no further than the cases cited in the majority opinion to discover the invalidity of that assertion. In one of these cases, Ker v. California, 374 U.S. 23 (1963), the police observed the defendant's participation in an illegal marihuana transaction, then went to his apartment to arrest him. After entering the apartment, the police saw and seized a block of marihuana as they placed the defendant under arrest. This Court upheld that seizure on the ground that the police were justifiably *507 in the defendant's apartment to make a valid arrest, there was no search because the evidence was in plain view, and the seizure of such evidence was authorized when incident to a lawful arrest. The discovery of the marihuana there could hardly be described as \"inadvertent.\"[3] In Marron v. United States, 275 U.S. 192 (1927), also cited by the majority, the Court upheld the seizure of business records as being incident to a valid arrest for operating an illegal retail whiskey enterprise. The records were discovered in plain view. I cannot say that the seizure of business records from a place of business during the course of an arrest for operating an illegal business was \"inadvertent.\"[4] The majority confuses the historically justified right of the police to seize visible evidence of the crime in open view at the scene of arrest with the \"plain view\" exception *508 to the requirement of particular description in search warrants. The majority apparently reasons that unless the seizure made pursuant to authority conferred by a warrant is limited to the particularly described object of seizure, the warrant will become a general writ of assistance. Evidently, as a check on the requirement of particular description in search warrants, the majority announces a new rule that items not named in a warrant cannot be seized unless their discovery was unanticipated or \"inadvertent.\"[5] The majority's concern is with the *509 scope of the intrusion authorized by a warrant. But the right to seize items properly subject to seizure because in open view at the time of arrest is quite independent of any power to search for such items pursuant to a warrant. The entry in the present case did not depend for its authority on a search warrant but was concededly authorized by probable cause to effect a valid arrest. The intrusion did not exceed that authority. The intrusion was limited in scope to the circumstances which justified the entry in the first place\u2014the arrest of petitioner. There was no general search; indeed, there was no search at all. The automobile itself was evidence properly subject to seizure and was in open view at the time and place of arrest.[6] Only rarely can it be said that evidence seized incident to an arrest is truly unexpected or inadvertent. Indeed, if the police officer had no expectation of discovering weapons, contraband, or other evidence, he would make no search. It appears to me that the rule adopted by the Court today, for all practical purposes, abolishes seizure incident to arrest. The majority rejects the test of reasonableness provided in the Fourth Amendment and substitutes a per se rule\u2014if the police could have obtained a warrant and did not, the seizure, no matter how reasonable, is void. But the Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only \"unreasonable searches and seizures.\" The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The *510 test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts. For all the reasons stated above, I believe the seizure and search of petitioner's car was reasonable and, therefore, authorized by the Fourth Amendment. The evidence so obtained violated neither the Fifth Amendment which does contain an exclusionary rule, nor the Fourth Amendment which does not. The jury of petitioner's peers, as conscious as we of the awesome gravity of their decision, heard that evidence and found the petitioner guilty of murder. I cannot in good conscience upset that verdict. MR. JUSTICE BLACKMUN joins MR. JUSTICE BLACK in Parts II and III of this opinion and in that portion of Part I thereof which is to the effect that the Fourth Amendment supports no exclusionary rule. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE joins, concurring and dissenting. I would affirm the judgment. In my view, Coolidge's Pontiac was lawfully seized as evidence of the crime in plain sight and thereafter was lawfully searched under Cooper v. California, 386 U.S. 58 (1967). I am therefore in substantial disagreement with Parts II-C and II-D of the Court's opinion. Neither do I agree with Part II-B, and I can concur only in the result as to Part III.\nI The Fourth Amendment commands that the public shall be secure in their \"persons, houses, papers, and effects, against unreasonable searches and seizures . . . .\" As to persons, the overwhelming weight of authority is that a police officer may make an arrest without a warrant when he has probable cause to believe the suspect *511 has committed a felony.[1] The general rule also is that upon the lawful arrest of a person, he and the area under his immediate control may be searched and contraband or *512 evidence seized without a warrant. The right \"to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. . . has been uniformly maintained in many cases.\" Weeks v. United States, 232 U.S. 383, 392 (1914). Accord, Chimel v. California, 395 U.S. 752 (1969). With respect to houses and other private places, the general rule is otherwise: a search is invalid unless made on probable cause and under the authority of a warrant specifying the area to be searched and the objects to be seized. There are various exceptions to the rule, however, permitting warrantless entries and limited searches, the most recurring being the arrest without a warrant. The case before us concerns the protection offered by the Fourth Amendment to \"effects\" other than personal *513 papers or documents. It is clear that effects may not be seized without probable cause but the law as to when a warrant is required to validate their seizure is confused and confusing. Part of the difficulty derives from the fact that effects enjoy derivative protection when located in a house or other area within reach of the Fourth Amendment. Under existing doctrine, effects seized in warrantless, illegal searches of houses are fruits of a constitutional violation and may not be received in evidence. But is a warrant required to seize contraband or criminal evidence when it is found by officers at a place where they are legally entitled to be at the time? Before a person is deprived of his possession or right to possession of his effects, must a magistrate confirm that what the officer has legally seen (and would be permitted to testify about, if relevant and material) is actually contraband or criminal evidence? The issue arises in different contexts. First, the effects may be found on public property. Suppose police are informed that important evidence has been secreted in a public park. A search is made and the evidence found. Although the evidence was hidden rather than abandoned, I had not thought a search warrant was required for officers to make a seizure, see United States v. Lee, 274 U.S. 559 (1927) (boat seized on public waters);[2]Hester v. United States, 265 U.S. 57 (1924) (liquor seized in open field); any more than a warrant is needed to seize an automobile which is itself evidence of crime and which is found on a public street or in a parking lot. See Cooper v. California, supra. Second, the items may be found on the premises of a third party who gives consent for an official search *514 but who has no authority to consent to seizure of another person's effects. Frazier v. Cupp, 394 U.S. 731 (1969), would seem to settle the validity of the seizure without a warrant as long as the search itself involves no Fourth Amendment violation. Third, the police may arrest a suspect in his home and in the course of a properly limited search discover evidence of crime. The line of cases from Weeks v. United States, supra, to Harris v. United States, 331 U.S. 145 (1947), had recognized the rule that upon arrest searches of the person and of adjacent areas were reasonable, and Harris had approved an incidental search of broad scope. In the next Term, however, Trupiano v. United States, 334 U.S. 699 (1948), departed from the Harris approach. In Trupiano, officers, with probable cause to arrest, entered property and arrested the defendant while he was operating an illegal still. The still was seized. Time and circumstance would have permitted the officers to secure both arrest and search warrants, but they had obtained neither. The Court did not disturb seizure of the person without warrant but invalidated seizure of the still since the officers could have had a warrant but did not. United States v. Rabinowitz, 339 U.S. 56 (1950), however, returned to the rule that the validity of searches incident to arrest does not depend on the practicability of securing a warrant. And, while Chimel v. California, supra, narrowed the permissible scope of incident searches to the person and the immediate area within reach of the defendant, it did not purport to re-establish the Trupiano rule that searches accompanying arrests are invalid if there is opportunity to get a warrant. Finally, officers may be on a suspect's premises executing a search warrant and in the course of the authorized search discover evidence of crime not covered by the warrant. Marron v. United States, 275 U.S. 192 *515 (1927), flatly held that legal presence under a warrant did not itself justify the seizure of such evidence. However, seizure of the same evidence was permitted because it was found in plain sight in the course of making an arrest and an accompanying search. It is at least odd to me to permit plain-sight seizures arising in connection with warrantless arrests, as the long line of cases ending with Chimel has done, or arising in the course of a hot-pursuit search for a felon, Warden v. Hayden, 387 U.S. 294 (1967); Hester v. United States, supra; and yet forbid the warrantless seizure of evidence in plain sight when officers enter a house under a search warrant that is perfectly valid but does not cover the items actually seized. I have my doubts that this aspect of Marron can survive later cases in this Court, particularly Zap v. United States, 328 U.S. 624 (1946), vacated on other grounds, 330 U.S. 800 (1947), where federal investigators seized a cancelled check evidencing a crime that had been observed during the course of an otherwise lawful search. See also Stanley v. Georgia, 394 U.S. 557, 569 (1969) (STEWART, J., concurring in result). Cf. Chimel v. California, supra; Warden v. Hayden, supra; Frazier v. Cupp, supra. Apparently the majority agrees, for it lumps plain-sight seizures in such circumstances along with other situations where seizures are made after a legal entry. In all of these situations, it is apparent that seizure of evidence without a warrant is not itself an invasion either of personal privacy or of property rights beyond that already authorized by law. Only the possessory interest of a defendant in his effects is implicated. And in these various circumstances, at least where the discovery of evidence is \"inadvertent,\" the Court would permit the seizure because, it is said, \"the minor peril to Fourth Amendment protections\" is overridden by the \"major gain in effective law enforcement\" inherent in *516 avoiding the \"needless inconvenience\" of procuring a warrant. Ante, at 467, 468. I take this to mean that both the possessory interest of the defendant and the importance of having a magistrate confirm that what the officer saw with his own eyes is in fact contraband or evidence of crime are not substantial constitutional considerations. Officers in these circumstances need neither guard nor ignore the evidence while a warrant is sought. Immediate seizure is justified and reasonable under the Fourth Amendment. The Court would interpose in some or all of these situations, however, a condition that the discovery of the disputed evidence be \"inadvertent.\" If it is \"anticipated,\" that is if \"the police know in advance the location of the evidence and intend to seize it,\" the seizure is invalid. Id., at 470. I have great difficulty with this approach. Let us suppose officers secure a warrant to search a house for a rifle. While staying well within the range of a rifle search, they discover two photographs of the murder victim, both in plain sight in the bedroom. Assume also that the discovery of the one photograph was inadvertent but finding the other was anticipated. The Court would permit the seizure of only one of the photographs. But in terms of the \"minor\" peril to Fourth Amendment values there is surely no difference between these two photographs: the interference with possession is the same in each case and the officers' appraisal of the photograph they expected to see is no less reliable than their judgment about the other. And in both situations the actual inconvenience and danger to evidence remain identical if the officers must depart and secure a warrant. The Court, however, states that the State will suffer no constitutionally cognizable inconvenience from invalidating anticipated seizures since it had probable cause to search *517 for the items seized and could have included them in a warrant. This seems a punitive and extravagant application of the exclusionary rule. If the police have probable cause to search for a photograph as well as a rifle and they proceed to seek a warrant, they could have no possible motive for deliberately including the rifle but omitting the photograph. Quite the contrary is true. Only oversight or careless mistake would explain the omission in the warrant application if the police were convinced they had probable cause to search for the photograph. Of course, they may misjudge the facts and not realize they have probable cause for the picture, or the magistrate may find against them and not issue a warrant for it. In either event the officers may validly seize the photograph for which they had no probable cause to search but the other photograph is excluded from evidence when the Court subsequently determines that the officers, after all, had probable cause to search for it. More important, the inadvertence rule is unnecessary to further any Fourth Amendment ends and will accomplish nothing. Police with a warrant for a rifle may search only places where rifles might be and must terminate the search once the rifle is found; the inadvertence rule will in no way reduce the number of places into which they may lawfully look. So, too, the areas of permissible search incident to arrest are strictly circumscribed by Chimel. Excluding evidence seen from within those areas can hardly be effective to operate to prevent wider, unauthorized searches. If the police stray outside the scope of an authorized Chimel search they are already in violation of the Fourth Amendment, and evidence so seized will be excluded; adding a second reason for excluding evidence hardly seems worth the candle. Perhaps the Court is concerned that officers, having the *518 right to intrude upon private property to make arrests, will use that right as a pretext to obtain entry to search for objects in plain sight, cf. Chimel v. California, supra, at 767, but, if so, such a concern is unfounded. The reason is that under Chimel the police can enter only into those portions of the property into which entry is necessary to effect the arrest. Given the restrictions of Chimel, the police face a substantial risk that in effecting an arrest and a search incident thereto they will never enter into those portions of the property from which they can plainly see the objects for which they are searching and that, if they do not, those objects will be destroyed before they can return and conduct a search of the entire premises pursuant to a warrant. If the police in fact possess probable cause to believe that weapons, contraband, or evidence of crime is in plain view on the premises, it will be far safer to obtain a search warrant than to take a chance that in making an arrest they will come into plain view of the object they are seeking. It is only when they lack probable cause for a search\u2014when, that is, discovery of objects in plain view from a lawful vantage point is inadvertent\u2014that entry to make an arrest might, as a practical matter, assist the police in discovering an object for which they could not have obtained a warrant. But the majority in that circumstance would uphold their authority to seize what they see. I thus doubt that the Court's new rule will have any measurable effect on police conduct. It will merely attach undue consequences to what will most often be an unintended mistake or a misapprehension of some of this Court's probable-cause decisions, a failing which, I am afraid, we all have. By invalidating otherwise valid, plain-sight seizures where officers have probable cause and presumably, although the Court does not say so, opportunity to secure a warrant, the Court seems to turn in the direction of *519 the Trupiano rule, rejected in Rabinowitz and not revived in Chimel. But it seems unsure of its own rule. It is careful to note that Coolidge's car is not contraband, stolen, or in itself dangerous. Apparently, contraband, stolen, or dangerous materials may be seized when discovered in the course of an otherwise authorized search even if the discovery is fully anticipated and a warrant could have been obtained. The distinction the Court draws between contraband and mere evidence of crime is reminiscent of the confusing and unworkable approach that I thought Warden v. Hayden, supra, had firmly put aside. Neither does the Court in so many words limit Chimel; on the contrary, it indicates that warrantless Chimel-type searches will not be disturbed, even if the police \"anticipate that they will find specific evidence during the course of such a search.\" Ante, at 482. The Court also concedes that, when an arresting officer \"comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.\" Id., at 466 n. 24. Yet today's decision is a limitation on Chimel, for in the latter example, the Court would permit seizure only if the plain view was inadvertently obtained. If the police, that is, fully anticipate that, when they arrest a suspect as he is entering the front door of his home, they will find a credit card in his pocket and a picture in plain sight on the wall opposite the door, both of which will implicate him in a crime, they may under today's decision seize the credit card but not the picture. This is a distinction that I find to be without basis and that the Court makes no attempt to explain. I can therefore conclude only that Chimel and today's holding are squarely inconsistent and that the Court, unable to perceive *520 any reasoned distinction, has abandoned any attempt to find one. The Court also fails to mention searches carried out with third-party consent. Assume for the moment that authorities are reliably informed that a suspect, subject to arrest, but not yet apprehended, has concealed specified evidence of his crime in the house of a friend. The friend freely consents to a search of his house and accompanies the officers in the process. The evidence is found precisely where the officers were told they would find it, and the officers proceed to seize it, aware, however, that the friend lacks authority from the suspect to confer possession on them. The suspect's interest in not having his possession forcibly interfered with in the absence of a warrant from a magistrate is identical to the interest of Coolidge, and one would accordingly expect the Court to deal with the question. Frazier v. Cupp, supra, indicates that a seizure in these circumstances would be lawful, and the Court today neither overrules nor distinguishes Frazier; in fact, Part III of the Court's opinion, which discusses the officers' receipt of Coolidge's clothing and weapons from Mrs. Coolidge, implicitly approves Frazier. Neither does the Court indicate whether it would apply the inadvertence requirement to searches made in public places, although one might infer from its approval of United States v. Lee, supra, which held admissible a chemical analysis of bootleg liquor observed by revenue officers in plain sight, that it would not. Aware of these inconsistencies, the Court admits that \"it would be nonsense to pretend that our decision today reduces Fourth Amendment law to complete order and harmony.\" Ante, at 483. But it concludes that logical consistency cannot be attained in constitutional law and ultimately comes to rest upon its belief \"that the result reached in this case is correct. . . .\" Id., at 484. It *521 may be that constitutional law cannot be fully coherent and that constitutional principles ought not always be spun out to their logical limits, but this does not mean that we should cease to strive for clarity and consistency of analysis. Here the Court has a ready opportunity, one way or another, to bring clarity and certainty to a body of law that lower courts and law enforcement officials often find confusing. Instead, without apparent reason, it only increases their confusion by clinging to distinctions that are both unexplained and inexplicable.\nII In the case before us, the officers had probable cause both to arrest Coolidge and to seize his car. In order to effect his arrest, they went to his home\u2014perhaps the most obvious place in which to look for him. They also may have hoped to find his car at home and, in fact, when they arrived on the property to make the arrest, they did find the 1951 Pontiac there. Thus, even assuming that the Fourth Amendment protects against warrantless seizures outside the house, but see Hester v. United States, supra, at 59, the fact remains that the officers had legally entered Coolidge's property to effect an arrest and that they seized the car only after they observed it in plain view before them. The Court, however, would invalidate this seizure on the premise that officers should not be permitted to seize effects in plain sight when they have anticipated they will see them. Even accepting this premise of the Court, seizure of the car was not invalid. The majority makes an assumption that, when the police went to Coolidge's house to arrest him, they anticipated that they would also find the 1951 Pontiac there. In my own reading of the record, however, I have found no evidence to support this assumption. For all the record shows, the police, although they may have hoped to find the Pontiac at *522 Coolidge's home, did not know its exact location when they went to make the arrest, and their observation of it in Coolidge's driveway was truly inadvertent. Of course, they did have probable cause to seize the car, and, if they had had a valid warrant as well, they would have been justified in looking for it in Coolidge's driveway\u2014a likely place for it to be. But if the fact of probable cause bars this seizure, it would also bar seizures not only of cars found at a house, but also of cars parked in a parking lot, hidden in some secluded spot, or delivered to the police by a third party at the police station. This would simply be a rule that the existence of probable cause bars all warrantless seizures. It is evident on the facts of this case that Coolidge's Pontiac was subject to seizure if proper procedures were employed. It is also apparent that the Pontiac was in plain view of the officers who had legally entered Coolidge's property to effect his arrest. I am satisfied that it was properly seized whether or not the officers expected that it would be found where it was. And, since the Pontiac was legally seized as evidence of the crime for which Coolidge was arrested, Cooper v. California, supra, authorizes its warrantless search while in lawful custody of the police. \"It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for `[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'. . . Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence . . . .\" Cooper v. California, supra, at 61-62.\n*523 III Given the foregoing views, it is perhaps unnecessary to deal with the other grounds offered to sustain the search of Coolidge's car. Nonetheless, it may be helpful to explain my reasons for relying on the plain-sight rule rather than on Chambers v. Maroney, 399 U.S. 42 (1970), to validate this search. Chambers upheld the seizure and subsequent search of automobiles at the station house rather than requiring the police to search cars immediately at the places where they are found. But Chambers did not authorize indefinite detention of automobiles so seized; it contemplated some expedition in completing the searches so that automobiles could be released and returned to their owners. In the present case, however, Coolidge's Pontiac was not released quickly but was retained in police custody for more than a year and was searched not only immediately after seizure but also on two other occasions: one of them 11 months and the other 14 months after seizure. Since fruits of the later searches as well as the earlier one were apparently introduced in evidence, I cannot look to Chambers and would invalidate the later searches but for the fact that the police had a right to seize and detain the car not because it was a car, but because it was itself evidence of crime. It is only because of the long detention of the car that I find Chambers inapplicable, however, and I disagree strongly with the majority's reasoning for refusing to apply it. As recounted earlier, arrest and search of the person on probable cause but without a warrant is the prevailing constitutional and legislative rule, without regard to whether on the particular facts there was opportunity to secure a warrant. Apparently, exigent circumstances are so often present in arrest situations that it has been *524 deemed improvident to litigate the issue in every case. In similar fashion, \"practically since the beginning of the Government,\" Congress and the Court have recognized \"a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.\" Carroll v. United States, 267 U.S. 132, 153 (1925). As in the case of an arrest and accompanying search of a person, searches of vehicles on probable cause but without a warrant have been deemed reasonable within the meaning of the Fourth Amendment without requiring proof of exigent circumstances beyond the fact that a movable vehicle is involved. The rule has been consistently recognized, see Cooper v. California, supra; Brinegar v. United States, 338 U.S. 160 (1949); Harris v. United States, supra, at 168 (dissenting opinion); Davis v. United States, 328 U.S. 582, 609 (1946) (dissenting opinion); Scher v. United States, 305 U.S. 251 (1938); Husty v. United States, 282 U.S. 694 (1931); United States v. Lee, supra; and was reaffirmed less than a year ago in Chambers v. Maroney, supra, where a vehicle was stopped on the highway but was searched at the police station, there being probable cause but no warrant. The majority now approves warrantless searches of vehicles in motion when seized. On the other hand, warrantless, probable-cause searches of parked but movable vehicles in some situations would be valid only upon proof of exigent circumstances justifying the search. Although I am not sure, it would seem that, when police discover a parked car that they have probable cause to search, they may not immediately search but must seek *525 a warrant. But if before the warrant arrives, the car is put in motion by its owner or others, it may be stopped and searched on the spot or elsewhere. In the case before us, Coolidge's car, parked at his house, could not be searched without a valid warrant, although if Coolidge had been arrested as he drove away from his home, immediate seizure and subsequent search of the car would have been reasonable under the Fourth Amendment. I find nothing in the language or the underlying rationale of the line of cases from Carroll to Chambers limiting vehicle searches as the Court now limits them in situations such as the one before us. Although each of those cases may, as the Court argues, have involved vehicles or vessels in motion prior to their being stopped and searched, each of them approved the search of a vehicle that was no longer moving and, with the occupants in custody, no more likely to move than the unattended but movable vehicle parked on the street or in the driveway of a person's house. In both situations the probability of movement at the instance of family or friends is equally real, and hence the result should be the same whether the car is at rest or in motion when it is discovered. In Husty v. United States, supra, the police had learned from a reliable informant that Husty had two loads of liquor in automobiles of particular make and description parked at described locations. The officers found one of the cars parked and unattended at the indicated spot. Later, as officers watched, Husty and others entered and started to drive away. The car was stopped after having moved no more than a foot or two; immediate search of the car produced contraband. Husty was then arrested. The Court, in a unanimous opinion, sustained denial of a motion to suppress the fruits of the search, saying that \"[t]he Fourth Amendment does not prohibit the search, without warrant, of an automobile, for liquor illegally *526 transported or possessed, if the search is upon probable cause . . . .\" Id., at 700. Further, \"[t]he search was not unreasonable because, as petitioners argue, sufficient time elapsed between the receipt by the officer of the information and the search of the car to have enabled him to procure a search warrant. He could not know when Husty would come to the car or how soon it would be removed. In such circumstances we do not think the officers should be required to speculate upon the chances of successfully carrying out the search, after the delay and withdrawal from the scene of one or more officers which would have been necessary to procure a warrant. The search was, therefore, on probable cause, and not unreasonable . . . .\" Id., at 701. The Court apparently cites Husty with approval as involving a car in motion on the highway. But it was obviously irrelevant to the Court that the officers could have obtained a warrant before Husty attempted to drive the car away. Equally immaterial was the fact that the car had moved one or two feet at the time it was stopped. The search would have been approved even if it had occurred before Husty's arrival or after his arrival but before he had put the car in motion. The Court's attempt to distinguish Husty on the basis of the car's negligible movement prior to its being stopped is without force. The Court states flatly, however, that this case is not ruled by the Carroll-Chambers line of cases but by Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). There the car was properly stopped and the occupants arrested for reckless driving, but the subsequent search at the station house could not be justified as incident to the arrest. See Preston v. United States, 376 U.S. 364 (1964). Nor could the car itself be seized and later searched, as it was, absent probable cause to believe it contained evidence of crime. In Dyke, it was pointed out *527 that probable cause did not exist at the time of the search, and we expressly rested our holding on this fact, nothing that \"[s]ince the search was not shown to have been based upon sufficient cause,\" it was not necessary to reach other grounds urged for invalidating it. 391 U.S., at 222. Given probable cause, however, we would have upheld the search in Dyke. For Fourth Amendment purposes, the difference between a moving and movable vehicle is tenuous at best. It is a metaphysical distinction without roots in the commonsense standard of reasonableness governing search and seizure cases. Distinguishing the case before us from the Carroll-Chambers line of cases further enmeshes Fourth Amendment law in litigation breeding refinements having little relation to reality. I suggest that in the interest of coherence and credibility we either overrule our prior cases and treat automobiles precisely as we do houses or apply those cases to readily movable as well as moving vehicles and thus treat searches of automobiles as we do the arrest of a person. By either course we might bring some modicum of certainty to Fourth Amendment law and give the law enforcement officers some slight guidance in how they are to conduct themselves. I accordingly dissent from Parts II-B, II-C, and II-D of the Court's opinion. I concur, however, in the result reached in Part III of the opinion. I would therefore affirm the judgment of the New Hampshire Supreme Court. NOTES [*] Parts II-A, II-B, and II-C of this opinion are joined only by MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL. [1] During the lie-detector test, Coolidge had confessed to a theft of money from his employer. See III-A of text, infra. [2] For a very strong argument that this evidence should have been excluded because altogether lacking in probative value, see Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1342 n. 40 (1971). [3] After hearing the Attorney General's testimony on the issuance of the warrants, the trial judge said: \"I found that an impartial Magistrate would have done the same as you did. I don't think, in all sincerity, that I would expect that you could wear two pairs of shoes.\" [4] See also Gouled v. United States, 255 U.S. 298, 303-304 (1921): \"It would not be possible to add to the emphasis with which the framers of our Constitution and this court . . . have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two Amendments [the Fourth and Fifth]. The effect of the decisions cited is: that such rights are declared to be indispensable to the `full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen,\u2014the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or `gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers.\" See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 357. [5] Katz v. United States, 389 U.S. 347, 357. [6] Jones v. United States, 357 U.S. 493, 499. [7] McDonald v. United States, 335 U.S. 451, 456. [8] United States v. Jeffers, 342 U.S. 48, 51. [9] See Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (1765), and Wilkes v. Wood, 19 How. St. Tr. 1153, 98 Eng. Rep. 489 (1763). [10] See Elkins v. United States, 364 U.S. 206. [11] The suggestion in Part III-A of the concurring and dissenting opinion of MR. JUSTICE BLACK that this represents the formulation of \"a per se rule reaching far beyond\" Chimel v. California, 395 U.S. 752, post, at 503, is mistaken. The question discussed here is whether under pre-Chimel law the police could, contemporaneously with the arrest of Coolidge inside his house, make a search of his car for evidence\u2014i. e., the particles later introduced at his trial. There can be no question that after Chimel, such a search could not be justified as \"incident\" to the arrest, since Chimel held that a search so justified can extend only to the \"arrestee's person and the area `within his immediate control'\u2014construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.\" 395 U.S., at 763. The quite distinct question whether the police were entitled to seize the automobile as evidence in plain view is discussed in Part II-C below. Cf. n. 24, infra. [12] Cooper v. California, 386 U.S. 58, is not in point, since there the State did not rely on the theory of a search incident to arrest, but sought to justify the search on other grounds. Id., at 60. MR. JUSTICE BLACK'S opinion for the Court in Cooper reaffirmed Preston v. United States, 376 U.S. 364. [13] 267 U.S., at 153. [14] Id., at 156. [15] United States v. Di Re, 332 U.S. 581, 586. [16] Husty v. United States, 282 U.S. 694; Brinegar v. United States, 338 U.S. 160. [17] A third case that has sometimes been cited as an application of Carroll v. United States, 267 U.S. 132, is Scher v. United States, 305 U.S. 251. There, the police were following an automobile that they had probable cause to believe contained a large quantity of contraband liquor. The facts were as follows: The driver \"turned into a garage a few feet back of his residence and within the curtilage. One of the pursuing officers left their car and followed. As petitioner was getting out of his car this officer approached, announced his official character, and stated he was informed that the car was hauling bootleg liquor. Petitioner replied, `just a little for a party.' Asked whether the liquor was tax paid, he replied that it was Canadian whiskey; also, he said it was in the trunk at the rear of the car. The officer opened the trunk and found . . . .\" 305 U.S., at 253. The Court held: \"Considering the doctrine of Carroll v. United States, 267 U.S. 132 . . . and the application of this to the facts there disclosed, it seems plain enough that just before he entered the garage the following officers properly could have stopped petitioner's car, made search and put him under arrest. So much was not seriously controverted at the argument. \"Passage of the car into the open garage closely followed by the observing officer did not destroy this right. No search was made of the garage. Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt. The officers did nothing either unreasonable or oppressive. Agnello v. United States, 269 U.S. 20, 30; Wisniewski v. United States, 47 F.2d 825, 826 [CA6 1931].\" 305 U.S., at 254-255. Both Agnello, at the page cited, and Wisniewski dealt with the admissibility of evidence seized during a search incident to a lawful arrest. [18] It is frequently said that occupied automobiles stopped on the open highway may be searched without a warrant because they are \"mobile,\" or \"movable.\" No other basis appears for MR. JUSTICE WHITE'S suggestion in his dissenting opinion that we should \"treat searches of automobiles as we do the arrest of a person.\" Post, at 527. In this case, it is, of course, true that even though Coolidge was in jail, his wife was miles away in the company of two plainclothesmen, and the Coolidge property was under the guard of two other officers, the automobile was in a literal sense \"mobile.\" A person who had the keys and could slip by the guard could drive it away. We attach no constitutional significance to this sort of mobility.\nFirst, a good number of the containers that the police might discover on a person's property and want to search are equally movable, e. g., trunks, suitcases, boxes, briefcases, and bags. How are such objects to be distinguished from an unoccupied automobile \u2014not then being used for any illegal purpose\u2014sitting on the owner's property? It is true that the automobile has wheels and its own locomotive power. But given the virtually universal availability of automobiles in our society there is little difference between driving the container itself away and driving it away in a vehicle brought to the scene for that purpose. Of course, if there is a criminal suspect close enough to the automobile so that he might get a weapon from it or destroy evidence within it, the police may make a search of appropriately limited scope. Chimel v. California, 395 U.S. 752. See II-A of the text, supra. But if Carroll v. United States, 267 U.S. 132, permits a warrantless search of an unoccupied vehicle, on private property and beyond the scope of a valid search incident to an arrest, then it would permit as well a warrantless search of a suitcase or a box. We have found no case that suggests such an extension of Carroll. See nn. 16, 17, supra. [19] Cf. United States v. Payne, 429 F.2d 169 (CA9 1970). In that case, two couples were camping in an individually allotted campsite in Yosemite National Park. During the evening, an off-duty policeman camping with his family in an adjoining site observed the two couples smoking a substance he believed to be marihuana and also observed them making what he thought \"furtive\" movements to remove objects he thought to be drugs from the glove compartment of a car parked nearby. He summoned a park ranger, and the two entered the campsite. They found that one of the couples was preparing to bed down for the night, while the couple to whom the car belonged were visiting in another campsite. The officers searched the unoccupied parked automobile, found 12 Seconal capsules, and arrested the couple who had stayed behind. The Government attempted to uphold the search under Carroll, supra, and Brinegar, supra. The Court of Appeals answered: \"While it is true that the Supreme Court has enunciated slightly different rules concerning a search of an automobile without a warrant, the rationale is apparently based upon the fact that a `vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Chimel v. California, 395 U.S. 752, 764 . . . . In the instant case the search of the Volkswagen cannot be justified upon this reasoning. There is no indication in the record that the appellant or any of his party were preparing to leave, and quite to the contrary it is clear that appellant was bedding down for the evening and that there was ample time to secure the necessary warrant for the search of the car had [the Park Ranger] believed there was probable cause to seek one.\" 429 F.2d, at 171-172. [20] Part III-B of the concurring and dissenting opinion of MR. JUSTICE BLACK argues with vehemence that this case must somehow be controlled by Chambers v. Maroney, 399 U.S. 42, yet the precise applicability of Chambers is never made clear. On its face, Chambers purports to deal only with situations in which the police may legitimately make a warrantless search under Carroll v. United States, 267 U.S. 132. Since the Carroll rule does not apply in the circumstances of this case, the police could not have searched the car without a warrant when they arrested Coolidge. Thus MR. JUSTICE BLACK'S argument must be that Chambers somehow operated sub silentio to extend the basic doctrine of Carroll. It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any \"exigent circumstances\" had passed, and, for all the record shows, there was a magistrate easily available. Nonetheless, the analogy to this case is misleading. The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. For this purpose, it seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose. That the police may have been legally on the property in order to arrest Coolidge is, of course, immaterial, since, as shown in II-A of the text, supra, that purpose could not authorize search of the car even under United States v. Rabinowitz, 339 U.S. 56. [21] Cooper v. California, 386 U.S. 58, is no more in point here than in the context of a search incident to a lawful arrest. See n. 12, supra. In Cooper, the seizure of the petitioner's car was mandated by California statute, and its legality was not questioned. The case stands for the proposition that, given an unquestionably legal seizure, there are special circumstances that may validate a subsequent warrantless search. Cf. Chambers, supra. The case certainly should not be read as holding that the police can do without a warrant at the police station what they are forbidden to do without a warrant at the place of seizure. [22] Coolidge had admitted that on the night of Pamela Mason's disappearance he had stopped his Pontiac on the side of the highway opposite the place where the body was found. He claimed the car was stuck in the snow. Two witnesses, who had stopped and asked him if he needed help, testified that his car was not stuck. [23] See nn. 12 and 21, supra. [24] The \"plain view\" exception to the warrant requirement is not in conflict with the law of search incident to a valid arrest expressed in Chimel v. California, 395 U.S. 752. The Court there held that \"[t]here is ample justification . . . for a search of the arrestee's person and the area `within his immediate control'\u2014construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.\" Id., at 763. The \"plain view\" doctrine would normally justify as well the seizure of other evidence that came to light during such an appropriately limited search. The Court in Chimel went on to hold that \"[t]here is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs\u2014or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.\" Ibid. Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee. [25] Trupiano v. United States, supra, applied the principle in circumstances somewhat similar to those here. Federal law enforcement officers had infiltrated an agent into a group engaged in manufacturing illegal liquor. The agent had given them the fullest possible description of the layout and equipment of the illegal distillery. Although they had ample opportunity to do so, the investigators failed to procure search or arrest warrants. Instead, they staged a warrantless nighttime raid on the premises. After entering the property, one of the officers looked through the doorway of a shed, and saw one of the criminals standing beside an illegal distillery. The officer entered, made a legal arrest, and seized the still. This Court held it inadmissible at trial, rejecting the Government's argument based on \"the long line of cases recognizing that an arresting officer may look around at the time of the arrest and seize those fruits and evidences of crime or those contraband articles which are in plain sight and in his immediate and discernible presence.\" 334 U.S., at 704. The Court reasoned that there was no excuse whatever for the failure of the agents to obtain a warrant before entering the property, and that the mere fact that a suspect was arrested in the proximity of the still provided no \"exigent circumstance\" to validate a warrantless seizure. The scope of the intrusion permitted to make the valid arrest did not include a warrantless search for and seizure of a still whose exact location and illegal use were known well in advance. The fact that at the time of the arrest the still was in plain view and nearby was therefore irrelevant. The agents were in exactly the same position as the policemen in Taylor v. United States, 286 U.S. 1, who had unmistakable evidence of sight and smell that contraband liquor was stored in a garage, but nonetheless violated the Fourth Amendment when they entered and seized it without a warrant.\nTrupiano, to be sure, did not long remain undisturbed. The extremely restrictive view taken there of the allowable extent of a search and seizure incident to lawful arrest was rejected in United States v. Rabinowitz, 339 U.S. 56. See Chimel v. California, 395 U.S. 752. The case demonstrates, however, the operation of the general principle that \"plain view\" alone can never justify a warrantless seizure. Cf. n. 24, supra. [26] None of the cases cited in Part III-C of the concurring and dissenting opinion of MR. JUSTICE BLACK casts any doubt upon this conclusion. In Steele v. United States, 267 U.S. 498, agents observed cases marked \"Whiskey\" being taken into a building from a truck. On this basis, they obtained a warrant to search the premises for contraband liquor. In the course of the search, they came upon a great deal of whiskey and gin\u2014not that they had seen unloaded\u2014 and various bottling equipment, and seized all they found.\nIn Warden v. Hayden, 387 U.S. 294, the police entered and searched a house in hot pursuit of a fleeing armed robber. The Court pointed out that \"[s]peed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.\" 387 U.S., at 299. The Court then established with painstaking care that the various articles of clothing seized were discovered during a search directed at the robber and his weapons. Id., at 299-300. In United States v. Lee, 274 U.S. 559, a Coast Guard patrol approached a boat on the high seas at night. A searchlight was turned on the boat and revealed cases of contraband. The liquor subsequently seized was never introduced in evidence, but the seizing officers were allowed to testify to what they had seen. As the Court put it: \"A later trespass by the officers, if any, did not render inadmissible in evidence knowledge legally obtained.\" 274 U.S., at 563. In Marron v. United States, 275 U.S. 192, officers raided a speakeasy with a warrant to search for and seize contraband liquor. They arrested the bartender and seized a number of bills and other papers in plain view on the bar. While searching a closet for liquor they came across a ledger kept in the operation of the illegal business, which they also seized. There is no showing whatever that these seizures outside the warrant were planned in advance. The Marron Court upheld them as \"incident\" to the arrest. The \"plain view\" aspect of the case was later emphasized in order to avoid the implication that arresting officers are entitled to make an exploratory search of the premises where the arrest occurs. See Go-Bart Importing Co. v. United States, 282 U. S., at 358; United States v. Lefkowitz, 285 U.S. 452, 465; United States v. Rabinowitz, 339 U. S., at 78 (Frankfurter, J., dissenting). Thus Marron, like Steele, supra, Warden, supra, and Lee, supra, can hardly be cited for the proposition that the police may justify a planned warrantless seizure by maneuvering themselves within \"plain view\" of the object they want. Finally, Ker v. California, 374 U.S. 23, is fully discussed in n. 28, infra. [27] MR. JUSTICE BLACK laments that the Court today \"abolishes seizure incident to arrest\" (but see n. 24, supra), while MR. JUSTICE WHITE no less forcefully asserts that the Court's \"new rule\" will \"accomplish nothing.\" In assessing these claims, it is well to keep in mind that we deal here with a planned warrantless seizure. This Court has never permitted the legitimation of a planned warrantless seizure on plain-view grounds, see n. 26, supra, and to do so here would be flatly inconsistent with the existing body of Fourth Amendment law. A long line of cases, of which those cited in the text, at n. 25, supra, are only a sample, make it clear beyond doubt that the mere fact that the police have legitimately obtained a plain view of a piece of incriminating evidence is not enough to justify a warrantless seizure. Although MR. JUSTICE BLACK and MR. JUSTICE WHITE appear to hold contrasting views of the import of today's decision, they are in agreement that this warrant requirement should be ignored whenever the seizing officers are able to arrange to make an arrest within sight of the object they are after. \"The exceptions cannot be enthroned into the rule.\" United States v. Rabinowitz, 339 U. S., at 80 (Frankfurter, J., dissenting). We recognized the dangers of allowing the extent of Fourth Amendment protections to turn on the location of the arrestee in Chimel v. California, 395 U. S., at 767, noting that under the law of search incident to arrest as enunciated prior to Chimel, \"law enforcement officials [had] the opportunity to engage in searches not justified by probable cause, by the simple expedient of arranging to arrest suspects at home rather than elsewhere.\" Cf. Trupiano v. United States, supra, n. 25, where the Court held: \"As we have seen, the existence of [the illegal still] and the desirability of seizing it were known to the agents long before the seizure and formed one of the main purposes of the raid. Likewise, the arrest of Antoniole [the person found in the shed with the still] . . . was a foreseeable event motivating the raid. But the precise location of the petitioners at the time of their arrest had no relation to the foreseeability or necessity of the seizure. The practicability of obtaining a search warrant did not turn upon whether Antoniole and the others were within the distillery building when arrested or upon whether they were then engaged in operating the illicit equipment.. . . Antoniole might well have been outside the building at that particular time. If that had been the case and he had been arrested in the farmyard, the entire argument advanced by the Government in support of the seizure without warrant would collapse. We do not believe that the applicability of the Fourth Amendment to the facts of this case depends upon such a fortuitous factor as the precise location of Antoniole at the time of the raid.\" 334 U.S., at 707-708. (Emphasis supplied.) [28] Ker v. California, 374 U.S. 23, is not to the contrary. In that case, the police had probable cause to enter Ker's apartment and arrest him, and they made an entry for that purpose. They did not have a search warrant, but the Court held that \"time . . . was of the essence,\" so that a warrant was unnecessary. As the police entered the living room, Ker's wife emerged from the adjacent kitchen. One of the officers moved to the door of the kitchen, looked in, and observed a brick of marihuana in plain view on a table. The officer brought Ker and his wife into the kitchen, questioned them, and, when they failed to explain the marihuana, arrested them, and seized the contraband. The police then searched the whole apartment and found various other incriminating evidence. The Court held that the general exploratory search of the whole apartment \"was well within the limits upheld in Harris v. United States [331 U.S. 145]\" for a search incident to a lawful arrest. The Court also rejected Ker's claim that the seizure of the brick of marihuana in the kitchen was illegal because the police had \"searched\" for it (by going to the door of the kitchen and looking in) before making any arrest. The Court reasoned that when Mrs. Ker emerged from the kitchen it was reasonable for the officer to go to the door and look in, and that when he saw the brick of marihuana he was not engaged in any \"search\" at all. Once he had arrested the Kers, the actual seizure of the brick was lawful because \"incident\" to the arrest. 374 U.S., at 42-43.\nKer is distinguishable from the present case on at least the following grounds: in Ker, the Court found that \"the officers entered the apartment for the purpose of arresting George Ker,\" rather than for purposes of seizure or search, 374 U.S., at 42-43; exigent circumstances justified the failure to obtain a search warrant; the discovery of the brick of marihuana was fortuitous; the marihuana was contraband easily destroyed; and it was in the immediate proximity of the Kers at the moment of their arrest so that the seizure was unquestionably lawful under the search-incident law of the time, and might be lawful under the more restrictive standard of Chimel v. California, 395 U.S. 752. Not one of these elements was present in the case before us. [29] United States v. Rabinowitz, supra, at 66. [30] See the cases cited in nn. 5-8, supra, and in the text at n. 25, supra. [31] See Carroll v. United States, supra, and cases discussed in Part II-B above (automobiles); Katz v. United States, supra (electronic surveillance); Terry v. Ohio, 392 U.S. 1; Sibron v. New York, 392 U.S. 40 (street searches); Camara v. Municipal Court, 387 U.S. 523; See v. Seattle, 387 U.S. 541 (administrative searches). [32] E. g., Giordenello v. United States, 357 U.S. 480. [33] E. g., Marron v. United States, supra; United States v. Rabinowitz, supra. [34] E. g., Wong Sun v. United States, 371 U.S. 471. [35] E. g., Trupiano v. United States, supra; Warden v. Hayden, supra; Ker v. California, supra. [36] Dorman v. United States, 140 U. S. App. D. C. 313, 435 F.2d 385 (1970). [37] Katz v. United States, supra, at 357. [38] Gouled v. United States, 255 U. S., at 304. [39] Cf. Recent Cases, 79 Harv. L. Rev. 1513, 1519 (1966); Note, Seizures by Private Parties: Exclusion in Criminal Cases, 19 Stan. L. Rev. 608 (1967). [*] Because of my views as to the retroactivity of Chimel v. California, 395 U.S. 752 (1969), I do not believe the seizure of the Pontiac can be upheld as incident to Coolidge's arrest. See my separate opinion in Mackey v. United States,401 U.S. 667, 675 (1971). [1] There are of course certain searches which constitutionally cannot be authorized even with a search warrant or subpoena. See, e. g., Boyd v. United States, 116 U.S. 616 (1886); Rochin v. California, 342 U.S. 165, 174 (1952) (BLACK, J., concurring); Schmerber v. California, 384 U.S. 757, 773 (1966) (BLACK, J., dissenting). [2] The majority attempts to rely on Preston v. United States, 376 U.S. 364 (1964), to support its holding that the police could not search petitioner's automobile at the station house. But this case is not Preston, nor is it controlled by Preston. The police arrested Preston for vagrancy. No claim was made that the police had any authority to hold his car in connection with that charge. The fact that the police had custody of Preston's car was totally unrelated to the vagrancy charge for which they arrested him; so was their subsequent search of the car. Here the officers arrested petitioner for murder. They seized petitioner's car as evidence of the crime for which he was arrested. Their subsequent search of the car was directly related to the reason petitioner was arrested and the reason his car had been seized and, therefore, was valid under this Court's decision in Cooper v. California, 386 U.S. 58 (1967).\nMy Brother WHITE points out that the police in the present case not only searched the car immediately upon taking it to the station house, but also searched it 11 months and 14 months after seizure. We held in Cooper, where the search occurred one week after seizure, that the Fourth Amendment is not violated by the examination or search of a car validly held by officers for use as evidence in a pending trial. In my view the police are entitled to search a car whether detained for a week or for a year where that car is being properly held as relevant evidence of the crime charged. [3] The facts in Ker undermine the majority's attempt to distinguish it from the instant case. The arresting officer there learned from other policemen that Ker had been observed meeting with a known marihuana supplier. The arresting officer had received information at various times over an eight-month period that Ker was selling marihuana from his apartment and that he was securing this marihuana from the known supplier. The arresting officer had a \"mug\" photograph of Ker at the time of the arrest and testified that for at least two months he had received information as to Ker's marihuana activities from a named informant who had previously given information leading to three other arrests and whose information was believed to be reliable. The arresting officer did not know whether Ker would be present at his apartment on the night of arrest. The officer had neither an arrest nor a search warrant. He entered Ker's apartment, placed Ker under arrest, and seized the block of marihuana in plain view in the adjoining room. This Court held that the seizure was reasonable and therefore valid under the Fourth Amendment. [4] The majority correctly notes, ante, at 464, that this Court in Warden v. Hayden, 387 U.S. 294 (1967), flatly rejected the distinction for purposes of the Fourth Amendment between \"mere evidence\" and contraband, a distinction which the majority appears to me to reinstate at another point in its opinion, ante, at 471 and 472. [5] The cases cited by the majority simply do not support the majority's new rule. For instance, when the police in Steele v. United States, 267 U.S. 498 (1925), entered a warehouse under the authority of a search warrant issued on a showing of probable cause that the Prohibition Act was being violated and naming \"cases of whiskey\" as the objects of search, it can scarcely be said that their discovery and seizure of barrels of whiskey and bottles and bottling equipment in plain view were \"inadvertent.\" The majority states that the seizure in Warden v. Hayden, supra, was justified because the police \"inadvertently\" came across the evidence while in hot pursuit of a fleeing suspect. In that case the police answered the call of two witnesses who stated that an armed robber had just held up a business. The witnesses described the robber and the clothes he was wearing. They had followed the robber to a particular house. The police searched the house and seized (1) a shotgun and a pistol found in a toilet on the second floor; (2) ammunition for the pistol and a cap like the one worn by the robber, both found beneath the mattress in the defendant's bedroom; and (3) a jacket and trousers of the type the fleeing man was said to have worn, found in a washing machine in the basement. It is quite difficult for me to accept the majority's characterization of these discoveries as \"inadvertent.\" See also United States v. Lee, 274 U.S. 559 (1927), another case cited by the majority, where Coast Guard officers, with probable cause to believe that a boat was being used to violate the Prohibition Act, shined a searchlight across the deck and discovered illicit whiskey. The admission of testimony regarding that discovery was upheld by this Court against a Fourth Amendment challenge, although the discovery could hardly be termed \"inadvertent.\" [6] Moreover, what a person knowingly exposes to the public is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210 (1966); United States v. Lee, 274 U.S. 559, 563 (1927); Hester v. United States, 265 U.S. 57 (1924). [1] This was the common-law rule. 1 J. Stephen, A History of Criminal Law of England 193 (1883); 2 M. Hale, Historia Placitorum Coronae 72-104 (new ed. 1800). It is also the constitutional rule. In Carroll v. United States, 267 U.S. 132 (1925), the Court said that \"[t]he usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony . . . .\" Id., at 156. There in September 1921, officers had probable cause to believe the two defendants were unlawfully transporting bootleg liquor, but they had neither effected an immediate arrest nor sought a warrant. Several months later they observed the two men driving on a public highway, stopped, and searched the car and arrested the men, and this Court sustained both the search and the arrest. So also in Trupiano v. United States, 334 U.S. 699 (1948), officers were amply forewarned of criminal activities and had time to seek a warrant but did not do so. Instead, some time later they entered on property where Trupiano had a still and found exactly what they expected to find\u2014one of the defendants engaged in the distillation of bootleg liquor. His arrest without a warrant was sustained, the Court saying that \"[t]he absence of a warrant of arrest, even though there was sufficient time to obtain one, [did] not destroy the validity of an arrest\" in the circumstances of the case. Id., at 705.\nThe judgment of Congress also is that federal law enforcement officers may reasonably make warrantless arrests upon probable cause. It has authorized such arrests by United States Marshals, agents of the Federal Bureau of Investigation and of the Secret Service, and narcotics law enforcement officers. See Act of June 15, 1935, \u00a7 2, 49 Stat. 378, as amended, 18 U.S. C. \u00a7 3053; Act of June 18, 1934, 48 Stat. 1008, as amended, 18 U.S. C. \u00a7 3052; Act of Sept. 29, 1965, 79 Stat. 890, as amended, 18 U.S. C. \u00a7 3056 (1964 ed., Supp. V); Act of July 18, 1956, Tit. I, \u00a7 104 (a), 70 Stat. 570, as amended, 26 U.S. C. \u00a7 7607 (2). And, in 1951, Congress expressly deleted from the authority to make warrantless arrests a pre-existing statutory restriction barring them in the absence of a likelihood that the person would escape before a warrant could be obtained. See Act of Jan. 10, 1951, \u00a7 1, 64 Stat. 1239; S. Rep. No. 2464, 81st Cong., 2d Sess., 2 (1950); H. R. Rep. No. 3228, 81st Cong., 2d Sess., 2 (1950); Chimel v. California, 395 U.S. 752, 776-780 (1969) (dissenting opinion). The majority now suggests that warrantless, probable-cause arrests may not be made in the home absent exigent circumstances. Jones v. United States, 357 U.S. 493 (1958), invalidated a forcible nighttime entry to effect a search without a warrant and suggested also that the particular circumstances of the entry would have posed a serious Fourth Amendment issue if the purpose of the entry had been to make an arrest. But, as a constitutional matter, the Court has never held or intimated that all probable-cause arrests without a warrant in the home must be justified by exigent circumstances other than the necessity for arresting a felon, or that, if the elapsed time between the accrual of probable cause and the making of the arrest proves sufficient to have obtained a warrant, the arrest is invalid. On the contrary, many cases in this Court have proceeded on the assumption that ordinarily warrantless arrests on probable cause may be effected even in the home. See Sabbath v. United States, 391 U.S. 585 (1968); Miller v. United States, 357 U.S. 301, 305-308 (1958); United States v. Rabinowitz, 339 U.S. 56, 60 (1950) (dictum); Trupiano v. United States, supra; Johnson v. United States, 333 U.S. 10, 15 (1948) (dictum). Of course, this is not to say that the time and method of entry could never pose serious constitutional questions under the Fourth Amendment. 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