Rosenfeld Susan. Encyclopedia of American Historical Documents
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of certiorari, constitutional grounds were urged in part for
reversal of the contempt conviction. In denying the writ of
certiorari, the Supreme Court concluded that petitioner
had been accorded due process, and in explaining its
denial the court considered and rejected various constitu-
tional claims relating to the validity of the order. There was
no intimation that the petitioner had selected an inappro-
priate form of appellate review to obtain consideration of
all questions of law raised by a contempt judgment. The
Alabama cases indicate, as was said in the opinion below,
that an order requiring production of evidence “ . . . may
be reviewed on petition for mandamus.” . . . But we can
discover nothing in the prior state cases which suggests
that mandamus is the exclusive remedy for reviewing court
orders after disobedience of them had led to contempt
judgments. Nor, so far as we can find, do any of these prior
decisions indicate that the validity of such orders can be
drawn in question by way of certiorari only in instances
where a defendant had no opportunity to apply for man-
damus. Although the opinion below suggests no such dis-
tinction, the State now argues that this was in fact the
situation in all of the earlier certiorari cases, because there
the contempt adjudications, unlike here, had followed
almost immediately the disobedience to the court orders.
Even if that is indeed the rationale of the Alabama
Supreme Court’s present decision, such a local procedural
rule, although it may now appear in retrospect to form part
of a consistent pattern of procedures to obtain appellate
review, cannot avail the State here, because petitioner
could not fairly be deemed to have been apprised of its
existence. Novelty in procedural requirements cannot be
permitted to thwart review in this Court applied for by
those who, in justified reliance upon prior decisions, seek
vindication in state courts of their federal constitutional
rights . . .
That there was justified reliance here is further indi-
cated by what the Alabama Supreme Court said in dispos-
ing of petitioner’s motion for a stay of the first contempt
judgment in this case. This motion, which was filed prior
to the final contempt judgment and which stressed consti-
tutional issues, recited that “[t]he only way in which the
[Association] can seek a review of the validity of the order
upon which the adjudication of contempt is based [is] by
filing a petition for Writ of Certiorari in this Court.” In
denying the motion, 265 Ala. 356, 357, 91 So.2d 220, 221,
the Supreme Court stated:
“It is the established rule of this Court that the proper
method of reviewing a judgment for civil contempt of the
kind here involved is by a petition for common law writ of
certiorari. . . .
“But the petitioner here has not applied for writ of
certiorari, and we do not feel that the petition [for a stay]
presently before us warrants our interference with the
judgment of the Circuit Court of Montgomery County
here sought to be stayed.”
We hold that this Court has jurisdiction to entertain
petitioner’s federal claims.
II.
The Association both urges that it is constitutionally enti-
tled to resist official inquiry into its membership lists, and
that it may assert, on behalf of its members, a right per-
sonal to them to be protected from compelled disclosure
by the State of their affiliation with the Association as
revealed by the membership lists. We think that petitioner
argues more appropriately the rights of its members, and
that its nexus with them is sufficient to permit that it act
as their representative before this Court. In so conclud-
ing, we reject respondent’s argument that the Association
lacks standing to assert here constitutional rights pertain-
ing to the members, who are not of course parties to the
litigation.
To limit the breadth of issues which must be dealt with
in particular litigation, this Court has generally insisted
that parties rely only on constitutional rights which are
personal to themselves. . . . This rule is related to the
broader doctrine that constitutional adjudication should
where possible be avoided. . . . The principle is not disre-
spected where constitutional rights of persons who are not
immediately before the Court could not be effectively vin-
dicated except through an appropriate representative
before the Court.
If petitioner’s rank-and-file members are constitution-
ally entitled to withhold their connection with the Associ-
ation despite the production order, it is manifest that this
right is properly assertable by the Association. To require
that it be claimed by the members themselves would result
in nullification of the right at the very moment of its asser-
tion. Petitioner is the appropriate party to assert these
rights, because it and its members are in every practical
sense identical. The Association, which provides in its con-
stitution that “[a]ny person who is in accordance with [its]
principles and policies . . . ” may become a member, is but
the medium through which its individual members seek
to make more effective the expression of their own views.
The reasonable likelihood that the Association itself
through diminished financial support and membership
may be adversely affected if production is compelled is a
further factor pointing towards our holding that petitioner
has standing to complain of the production order on behalf
of its members.
III.
We thus reach petitioner’s claim that the production order
in the state litigation trespasses upon fundamental free-
doms protected by the Due Process Clause of the Four-
1582 ERA 9: Postwar United States
teenth Amendment. Petitioner argues that in view of the
facts and circumstances shown in the record, the effect of
compelled disclosure of the membership lists will be to
abridge the rights of it rank-and-file members to engage in
lawful association in support of their common beliefs. It
contends that governmental action which, although not
directly suppressing association, nevertheless carries this
consequence, can be justified only upon some overriding
valid interest of the State.
Effective advocacy of both public and private points
of view, particularly controversial ones, is undeniably en-
hanced by group association, as this Court has more than
once recognized by remarking upon the close nexus be-
tween the freedoms of speech and assembly.
It is beyond debate that freedom to engage in associ-
ation for the advancement of beliefs and ideas is an insep-
arable aspect to the “liberty” assured by the Due Process
Clause of the Fourteenth Amendment, which embraces
freedom of speech.
Of course, it is immaterial whether the beliefs sought
to be advanced by association pertain to political, eco-
nomic, religious or cultural matters, and state action which
may have the effect of curtailing the freedom of associate
is subject to the closest scrutiny.
The fact that Alabama, so far as is relevant to the valid-
ity of the contempt judgment presently under review, has
taken no direct action, . . . to restrict the right of peti-
tioner’s members to associate freely, does not end inquiry
into the effect of the production order. . . . In the domain
of these indispensable liberties, whether of speech, press,
or association, the decisions of this Court recognize that
abridgement of such rights, even though unintended, may
inevitably follow from varied forms of governmental
action. Thus in Douds, the Court stressed that the legisla-
tion there challenged, which on its face sought to regulate
labor unions and to secure stability in interstate com-
merce, would have the practical effect “of discouraging”
the exercise of constitutionally protected political rights,
. . . and it upheld the statute only after concluding that the
reasons advanced for its enactment were constitutionally
sufficient to justify its possible deterrent effect upon such
freedoms. Similar recognition of possible unconstitutional
intimidation of the free exercise of the right to advocate
underlay this Court’s narrow construction of the authority
of a congressional committee investigating lobbying and of
an Act regulating lobbying, although in neither case was
there an effort to suppress speech. . . . The governmental
action challenged may appear to be totally unrelated to
protected liberties. Statutes imposing taxes upon rather
than prohibiting particular activity have been struck down
when perceived to have the consequence of unduly cur-
tailing the liberty of freedom of press assured under the
Fourteenth Amendment. . . .
It is hardly a novel perception that compelled disclo-
sure of affiliation with groups engaged in advocacy may
constitute as effective a restraint on freedom of association
as the forms of governmental action in the cases above
were thought likely to produce upon the particular consti-
tutional rights there involved. This Court has recognized
the vital relationship between freedom to associate and
privacy in one’s associations. When referring to the varied
forms of governmental action which might interfere with
freedom of assembly, it said “A requirement that adherents
of particular religious faiths or political parties wear iden-
tifying arm-bands, for example, is obviously of this nature.”
Compelled disclosure of membership in an organization
engaged in advocacy of particular beliefs is of the same
order. Inviolability of privacy in group association may in
many circumstances be indispensable to preservation of
freedom of association, particularly where a group
espouses dissident beliefs. . . .
We think that the production order, in the respects
here drawn in question, must be regarded as entailing the
likelihood of a substantial restraint upon the exercise by
petitioner’s members of their right to freedom of associa-
tion. Petitioner has made an uncontroverted showing that
on past occasions revelation of the identity of its rank-and-
file members has exposed these members to economic
reprisal, loss of employment, threat of physical coercion,
and other manifestations of public hostility. Under these
circumstances, we think it apparent that compelled disclo-
sure of petitioner’s Alabama membership is likely to affect
adversely the ability of petitioner and its members to pur-
sue their collective effort to foster beliefs which they ad-
mittedly have the right to advocate, it that it may induce
members to withdraw from the Association and dissuade
others from joining it because of fear of exposure of their
beliefs shown through their associations and of the conse-
quences of this exposure.
It is not sufficient to answer, as the State does here,
that whatever repressive effect compulsory disclosure of
names of petitioner’s members may have upon participa-
tion by Alabama citizens in petitioner’s activities follows
not from state action but from private community pres-
sures. The crucial factor is the interplay of governmental
and private action, for it is only after the initial exertion of
state power represented by the production order that pri-
vate action takes hold.
We turn to the final question whether Alabama has
demonstrated an interest in obtaining the disclosures it
seeks from petitioner which sufficient to justify the deter-
rent effect which we have concluded these disclosures may
well have on the free exercise by petitioner’s members of
their constitutionally protected right of association. . . . It
is not of moment that the State has here acted solely
through its judicial branch, for whether legislative or judi-
Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1583
cial, it is still the application of state power which we are
asked to scrutinize.
It is important to bear in mind that petitioner asserts
no right to absolute immunity from state investigation, and
no right to disregard Alabama’s laws. As shown by its sub-
stantial compliance with the production order, petitioner
does not deny Alabama’s right to obtain from it such infor-
mation as the State desires concerning the purposes of the
Association and its activities within the State. Petitioner
has not objected to divulging the identity of its members
who are employed by or hold official positions with it. It
has urged the rights solely of its ordinary rank-and-file
members. This is therefore not analogous to a case involv-
ing the interest of a State in protecting its citizens in their
dealings with paid solicitors or agents of foreign corpora-
tions by requiring identification. . . .
Whether there was “justification” in this instance
turns solely on the substantiality of Alabama’s interest in
obtaining the membership lists. During the course of a
hearing before the Alabama Circuit Court on a motion of
petitioner to set aside the production order, the State
Attorney General presented at length, under examination
by petitioner, the State’s reason for requesting the mem-
bership lists. The exclusive purpose was to determine
whether petitioner was conducting intrastate business in
violation of the Alabama foreign corporation registration
statute, and the membership lists were expected to help
resolve this question. The issues in the litigation com-
menced by Alabama by its bill in equity were whether the
character of petitioner and its activities in Alabama had
been such as to make petitioner subject to the registration
statute, and whether the extent of petitioner’s activities
without qualifying suggested its permanent ouster from
the State. Without intimating the slightest view upon the
merits of these issues, we are unable to perceive that the
disclosure of the names of petitioner’s rank-and-file mem-
bers has a substantial bearing on either of them. As mat-
ters stand in the state court, petitioner (1) has admitted its
presence and conduct of activities in Alabama since 1918;
(2) has offered to comply in all respects with the state qual-
ification statute, although preserving its contention that
the statute does not apply to it; and (3) has apparently
complied satisfactorily with the production order, except
for the membership lists, by furnishing the Attorney Gen-
eral with varied business records, its charter and statement
of purposes, the names of all of its directors and officers,
and with the total number of its Alabama members and the
amount of their dues. These last items would not on this
record appear subject to constitutional challenge and have
been furnished, but whatever interest the State may have
in obtaining names of ordinary members has not been
shown to be sufficient to overcome petitioner’s constitu-
tional objections to the production order.
From what has already been said, we think it apparent that
People of State of New York ex rel. Bryant v. Zimmerman,
278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184, cannot be relied on
in support of the State’s position, for that case involved
markedly different considerations in terms of the interest
of the State in obtaining disclosure. There, this Court
upheld as applied to a member of a local chapter of the Ku
Klux Klan, a New York statute requiring any unincor-
porated association which demanded an oath as a condi-
tion to membership to file with state officials copies of its
“. . . constitutions by-laws, rules, regulations and oath of
membership, together with a roster of its membership and
a list of its officers for the current year.” . . . In its opinion,
the Court took care to emphasize the nature of the organi-
zation which New York sought to regulate. The decision
was based on the particular character of the Klan’s activi-
ties, involving acts of unlawful intimidation and violence,
which the Court assumed was before the state legislature
when it enacted the statute, and of which the Court itself
took judicial notice. Furthermore, the situation before us
is significantly different from that in Bryant, because the
organization there had made no effort to comply with any
of the requirements of New York’s statute but rather had
refused to furnish the State with any information as to its
local activities.
. . . We hold that the immunity from state scrutiny of
membership lists which the Association claims on behalf of
its members is here so related to the right of the members
to pursue their lawful private interests privately and to
associate freely with others in so doing as to come within
the protection of the Fourteenth Amendment. And we
conclude that Alabama has fallen short of showing a con-
trolling justification for the deterrent effect on the free
enjoyment of the right to associate which disclosure of
membership lists is likely to have. Accordingly, the judg-
ment of civil contempt and the $100,000 fine which
resulted from petitioner’s refusal to comply with the pro-
duction order in this respect must fall.
IV.
Petitioner joins with its attack upon the production order
a challenge to the constitutionality of the State’s ex parte
temporary restraining order preventing it from soliciting
support in Alabama, and it asserts that the Fourteenth
Amendment precludes such state action. But as noted
above, petitioner has never received a hearing on the
merits of the ouster suit, and we do not consider these
questions properly here. The Supreme Court of Alabama
noted in its denial of the petition for certiorari that such
petition raised solely a question pertinent to the con-
tempt adjudication. “The ultimate aim and purpose of
the litigation is to determine the right of the state to
1584 ERA 9: Postwar United States
enjoin petitioners from doing business in Alabama. That
question, however, is not before us in this proceeding.”
The proper method for raising questions in the state
appellate courts pertinent to the underlying suit for an
injunction appears to be by appeal, after a hearing on the
merits and final judgment by the lower state court. Only
from the disposition of such an appeal can review be
sought here.
For the reasons stated, the judgment of the Supreme
Court of Alabama must be reversed and the case remanded
for proceedings not inconsistent with this opinion.
Source:
Supreme Court Reporter, Vol. 78, pp. 1,163–1,174.
Mapp v. Ohio, 1961
U.S. Supreme Court decision, issued on June 19, 1961, that
extended to state courts the federal courts’ constitutional pro-
tections against unreasonable searches and seizures. In 1957
police officers in Cleveland, Ohio, seeking a fugitive, broke
into the home of Doll Ree Mapp without a search warrant.
They found no fugitive but did discover some “lewd and las-
civious material.” Mapp was later convicted of possession of
obscene items. In a 5-3 decision, the Supreme Court over-
turned the conviction on the grounds that the evidence had
been seized in violation of Fourth Amendment requirements of
a search warrant. Previously, the exclusion of such evidence
was binding only in federal court. As a result, federal investi-
gators would sometimes hand over (on a “silver platter,” as it
was called) evidence inadmissable in federal courts to state
authorities.
Mapp
cut off the admissibility of any illegally col-
lected evidence by extending it to state courts through the
Fourteenth Amendment. The Burger and Rehnquist courts later
modified
Mapp
by permitting the “good faith” collection of
evidence pursuant to a warrant later found to be tainted and
by allowing it to stand if its exclusion would not have materi-
ally affected the outcome of the trial.
________________________
h
_______________________
Mr. Justice Clark delivered the opinion of the Court.
Appellant stands convicted of knowingly having had in
her possession and under her control certain lewd and las-
civious books, pictures, and photographs in violation of
Section 2905.34 of Ohio’s Revised Code. As officially
stated in the syllabus to its opinion, the Supreme Court of
Ohio found that her conviction was valid though “based
primarily upon the introduction in evidence of lewd and
lascivious books and pictures unlawfully seized during an
unlawful search of defendant’s home. . . .”
On May 23, 1957, three Cleveland police officers
arrived at appellant’s residence in that city pursuant to
information that “a person [was] hiding out in the home,
who was wanted for questioning in connection with a
recent bombing, and that there was a large amount of pol-
icy paraphernalia being hidden in the home.” Miss Mapp
and her daughter by a former marriage lived on the top
floor of the two-family dwelling. Upon their arrival at that
house, the officers knocked on the door and demanded
entrance but appellant, after telephoning her attorney,
refused to admit them without a search warrant. They
advised their headquarters of the situation and undertook
a surveillance of the house.
The officers again sought entrance some three hours
later when four or more additional officers arrived on the
scene. When Miss Mapp did not come to the door imme-
diately, at least one of the several doors to the house was
forcibly opened and the policemen gained admittance.
Meanwhile Miss Mapp’s attorney arrived, but the officers,
having secured their own entry, and continuing in their
defiance of the law, would permit him neither to see Miss
Mapp nor to enter the house. It appears that Miss Mapp
was halfway down the stairs from the upper floor to the
front door when the officers, in this highhanded manner,
broke into the hall. She demanded to see the search war-
rant. A paper, claimed to be a warrant, was held up by one
of the officers. She grabbed the “warrant” and placed it in
her bosom. A struggle ensued in which the officers recov-
ered the piece of paper and as a result of which they hand-
cuffed appellant because she had been “belligerent” in
resisting their official rescue of the “warrant” from her
person. Running roughshod over appellant, a policeman
“grabbed” her, “twisted [her] hand,” and she “yelled [and]
pleaded with him” because “it was hurting.” Appellant, in
handcuffs, was then forcibly taken upstairs to her bed-
room where the officers searched a dresser, a chest of
drawers, a closet and some suitcases. They also looked
into a photo album and through personal papers belong-
ing to the appellant. The search spread to the rest of the
second floor including the child’s bedroom, the living
room, the kitchen and a dinette. The basement of the
building and a trunk found therein were also searched.
The obscene materials for possession of which she was
ultimately convicted were discovered in the course of that
widespread search.
At the trial no search warrant was produced by the
prosecution, nor was the failure to produce one explained
or accounted for. At best, “There is, in the record, consid-
erable doubt as to whether there ever was any warrant for
the search of defendant’s home.” . . . The Ohio Supreme
Court believed a “reasonable argument” could be made
that the conviction should be reversed “because the ‘meth-
ods’ employed to obtain the [evidence] were such as to
‘offend ‘“a sense of justice,”’ but the court found determi-
native the fact that the evidence had not been taken “from
Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1585
defendant’s person by the use of brutal or offensive physi-
cal force against defendant.” . . .
The State says that even if the search were made with-
out authority, or otherwise unreasonably, it is not pre-
vented from using the unconstitutionally seized evidence
at trial, citing Wolf v. People of State of Colorado, 1949 . . .
in which this Court did indeed hold “that in a prosecution
in a State court for a State crime the Fourteenth Amend-
ment does not forbid the admission of evidence obtained
by an unreasonable search and seizure.” On this appeal, of
which we have noted probable jurisdiction, . . . it is urged
once again that we review that holding.
I.
Seventy-five years ago, on Boyd v. United States, 1886 . . .
considering the Fourth and Fifth Amendments as running
“almost into each other” on the facts before it, this Court
held that the doctrines of those Amendments
“apply to all invasions on the part of the government
and its employees of the sanctity of a man’s home and the
privacies of life. It is not the breaking of his doors, and the
rummaging of his drawers, that constitutes the essence of
the offence; but it is the invasion of his indefeasible right
of personal security, personal liberty and private property.
. . . Breaking into a house and opening boxes and drawers
are circumstances of aggravation; but any forcible and
compulsory extortion of man’s own testimony or of his pri-
vate papers to be used as evidence to convict him of crime
or to forfeit his goods, is within the condemnation . . . [of
those Amendments].”
The Court noted that
“constitutional provisions for the security of person
and property should be liberally construed. . . . It is the
duty of courts to be watchful for the constitutional rights of
the citizen, and against any stealthy encroachments there-
on.” . . .In this jealous regard for maintaining the integrity
of individual rights, the Court gave life to Madison’s pre-
diction that “independent tribunals of justice . . . will be
naturally led to resist every encroachment upon rights
expressly stipulated for in the Constitution by the dec-
laration of rights.” Concluding, the Court specifically
referred to the use of the evidence there seized as “un-
constitutional.”
Less than 30 years after Boyd, this Court, in Weeks v.
United States, 1914, stated that
“that 4th Amendment . . . put the courts of the United
States and Federal officials, in the exercise of their power
and authority, under limitations and restraints [and] . . .
forever secure[d] the people, their persons, houses, pa-
pers, and effects, against all unreasonable searches and
seizures under the guise of law . . . and the duty of giving
to it force and effect is obligatory upon all entrusted under
our Federal system with the enforcement of the laws.”
Specifically dealing with the use of the evidence
unconstitutionally seized, the Court concluded:
“If letters and private documents can thus be seized
and held and used in evidence against a citizen accused of
an offense, the protection of the Fourth Amendment
declaring his right to be secure against such searches and
seizures is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitu-
tion. The efforts of the courts and their officials to bring
the guilty to punishment, praiseworthy as they are, are not
to be aided by the sacrifice of those great principles estab-
lished by years of endeavor and suffering which have
resulted in their embodiment in the fundamental law of
the land.” . . .
Finally, the Court in that case clearly stated that use of
the seized evidence involved “a denial of the constitutional
rights of the accused.” . . . Thus, in the year 1914, in the
Weeks case, this Court “for the first time” held that “in a
federal prosecution the Fourth Amendment barred the
use of evidence secured through an illegal search and
seizure.” . . . This Court has ever since required of federal
law officers a strict adherence to that command which this
Court has held to be a clear, specific, and constitutionally
required—even if judicially implied—deterrent safeguard
without insistence upon which the Fourth Amendment
would have been reduced to “a form of words.” . . .It
meant, quite simply, that “conviction by means of unlawful
seizures and enforced confessions . . . should find no sanc-
tion in the judgments of the courts . . . ,” . . .and that such
evidence “shall not be used at all. . . .
There are in the cases of this Court some passing ref-
erences to the Weeks rule as being one of evidence. But
the plain and unequivocal language of Weeks—and its later
paraphrase in Wolf—to the effect that the Weeks rule is of
constitutional origin, remains entirely undisturbed. . . . A
unanimous Court declared that “the doctrine [cannot]
. . . be tolerated under our constitutional system, that evi-
dences of crime discovered by a federal officer in making a
search without lawful warrant may be used against the vic-
tim of the unlawful search where a timely challenge has
been interposed.” The Court, in Olmstead v. United States,
1928, in unmistakable language restated the Weeks rule:
“The striking outcome of the Weeks case and those
which followed it was the sweeping declaration that the
Fourth Amendment, although not referring to or limiting
the use of evidence in court, really forbade its introduction
if obtained by government officers through a violation of
the amendment.”
In McNabb v. United States, 1943, . . . we note this
statement:
“[A] conviction in the federal courts, the foundation of
which is evidence obtained in disregard of liberties
deemed fundamental by the Constitution, cannot stand.
1586 ERA 9: Postwar United States
Boyd v. United States . . . Weeks v. United States. . . . And
this Court has, on Constitutional grounds, set aside con-
victions, both in the federal and state courts, which were
based upon confessions ‘secured by protracted and re-
peated questioning of ignorant and untutored persons, in
whose minds the power of officers was greatly magnified’
. . . or who have been unlawfully held incommunicado
without advice of friends or counsel’ . . .”
Significantly, in McNabb, the Court did then pass on
to formulate a rule of evidence, saying, “[i]n the view we
take of the case, however, it becomes unnecessary to reach
the Constitutional issue [for] . . . [t]he principles governing
the admissibility of evidence in federal criminal trials have
not been restricted . . . to those derived solely from the
Constitution.” . . .
II.
In 1949, 35 years after Weeks was announced, this Court,
in Wolf v. People of State of Colorado, supra, again for the
first time, discussed the effect of the Fourth Amendment
upon the States through the operation of the Due Process
Clause of the Fourteenth Amendment. It said:
“[W]e have no hesitation in saying that were a State
affirmatively to sanction such police incursion into privacy
it would run counter to the guaranty of the Fourteenth
Amendment.” . . .
Nevertheless, after declaring that the “security of
one’s privacy against arbitrary intrusion by the police” is
“implicit in ‘the concept of ordered liberty’ and as such
enforceable against the States through the Due Process
Clause,” . . . and announcing that it “stoutly adhere[d]” to
the Weeks decision, the Court decided that the Weeks
exclusionary rule would not then be imposed upon the
States as “an essential ingredient of the right.” . . . The
Court’s reasons for not considering essential to the right to
privacy, as a curb imposed upon the States by the Due Pro-
cess Clause, that which decades before had been posited
as part and parcel of the Fourth Amendment’s limitation
upon federal encroachment of individual privacy, were
bottomed on factual considerations.
While they are not basically relevant to a decision that
the exclusionary rule is an essential ingredient of the
Fourth Amendment as the right it embodies is vouchsafed
against the States by the Due Process Clause, we will con-
sider the current validity of the factual grounds upon
which Wolf was based.
The Court in Wolf first stated that “[t]he contrariety of
views of the States” on the adoption of the exclusionary rule
of Weeks was “particularly impressive”. . . ; and, in this con-
nection, that it could not “brush aside the experience of
States which deem the incidence of such conduct by the
police too slight to call for a deterrent remedy . . . by over-
riding the [States’] relevant rules of evidence.” . . . While in
1949, prior to the Wolf case, almost two-thirds of the States
were opposed to the use of the exclusionary rule, now,
despite the Wolf case, more than half of those since passing
upon it, by their own legislative or judicial decision, have
wholly or partly adopted or adhered to the Weeks rule. . . .
Significantly, among those now following the rule is Cali-
fornia, which, according to its highest court, was “com-
pelled to reach that conclusion because other remedies
have completely failed to secure compliance with the con-
stitutional provisions. . . .” . . . In connection with this Cal-
ifornia case, we note that the second basis elaborated in
Wolf in support of its failure to enforce the exclusionary
doctrine against the States was that “other means of pro-
tection” have been afforded “the right to privacy.” . . . The
experience of California that such other remedies have
been worthless and futile is buttressed by the experience of
other States. The obvious futility of relegating the Fourth
Amendment to the protection of other remedies has, more-
over, been recognized by this Court since Wolf.
Likewise, time has set its face against what Wolf called
the “weighty testimony” of People v. Defore, 1926. . . .
There Justice (then Judge) Cardozo, rejecting adoption of
the Weeks exclusionary rule in New York, had said that
“[t]he Federal rule as it stands is either too strict or too
lax.” . . . However, the force of that reasoning has been
largely vitiated by later decision of this Court. These
include the recent discarding of the “silver platter” doc-
trine which allowed federal judicial use of evidence seized
in violation of the Constitution by state agents; the relax-
ation of the formerly strict requirements as to standing to
challenge the use of evidence thus seized, so that now the
procedure of exclusion, “ultimately referable to constitu-
tional safeguards,” is available to anyone even “legitimately
on [the] premises” unlawfully searched . . . and finally, the
formulation of a method to prevent state use of evidence
unconstitutionally seized by federal agents, Rea v. United
States, 1956. Because there can be no fixed formula, we
are admittedly met with “recurring questions of the rea-
sonableness of searches,” but less is not to be expected
when dealing with a Constitution, and, at any rate,
“[r]easonableness is in the first instance for the [trial court]
to determine.” . . .
It, therefore, plainly appear that the factual consider-
ations supporting the failure of the Wolf Court to include
the Weeks exclusionary rule when it recognized the en-
forceability of the right to privacy against the States in
1949, while not basically relevant to the constitutional con-
sideration, could not, in any analysis, now be deemed con-
trolling.
III.
Some five years after Wolf, in answer to a plea made here
Term after Term that we overturn its doctrine on applica-
Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1587
bility of the Weeks exclusionary rule, this court indicated
that such should not be done until the States had “ade-
quate opportunity to adopt or reject the [Weeks] rule.”
Irvine v. People of State of California, supra, 347 U.S. at
page 134, 74 S.Ct. at page 384. There again it was said:
“Never until June of 1949 did this Court hold the basic
search-and-seizure prohibition in any way applicable to the
states under the Fourteenth Amendment.” Ibid.
And only last Term, after again carefully re-examining
the Wolf doctrine in Elkins v. United States, supra, the
Court pointed out that “the controlling principles” as to
search and seizure and the problem of admissibility
“seemed clear” . . . until the announcement in Wolf “that
the Due Process Clause of the Fourteenth Amendment
does not itself require state courts to adopt the exclusion-
ary rule” of the Weeks case. . . . At the same time, the
Court pointed out, “the underlying constitutional doctrine
which Wolf established . . . that the Federal Constitution
. . . prohibits unreasonable searches and seizures by state
officers” had undermined the “foundation upon which the
admissibility of state-seized evidence in a federal trial orig-
inally rested. . . .” . . . The Court concluded that it was
therefore obliged to hold, although it chose the narrower
ground on which to do so, that all evidence obtained by an
unconstitutional search and seizure was inadmissible in a
federal court regardless of its source. Today we once again
examine Wolf’s constitutional documentation of the right
to privacy free from unreasonable state intrusion, and,
after its dozen years on our books, are led by it to close the
only courtroom door remaining open to evidence secured
by official lawlessness in flagrant abuse of that basic right,
reserved to all persons as a specific guarantee against that
very same unlawful conduct. We hold that all evidence
obtained by searches and seizures in violation of the Con-
stitution is, by that same authority, inadmissible in a state
court.
IV.
Since the Fourth Amendment’s right of privacy has been
declared enforceable against the States through the Due
Process Clause of the Fourteenth, it is enforceable against
them by the same sanction of exclusion as is used against
the Federal Government. Were it otherwise, then just as
without the Weeks rule the assurance against unreasonable
federal searches and seizures would be “a form of words,”
valueless and undeserving of mention in a perpetual char-
ter of inestimable human liberties, so too, without that rule
the freedom from state invasions of privacy would be so
ephemeral and so neatly severed from its conceptual nexus
with the freedom from all brutish means of coercing evi-
dence as not to merit this Court’s high regard as a freedom
“implicit in ‘the concept of ordered liberty.’” At the time
that the Court held in W
OLF
that the Amendment was
applicable to the States through the Due Process Clause,
the cases of this Court, as we have seen, had steadfastly
held that as to federal officers the Fourth Amendment
included the exclusion of the evidence seized in violation
of its provisions. Even Wolf “stoutly adhered” to that
proposition. The right to privacy, when conceded opera-
tively enforceable against the States, was not susceptible of
destruction by avulsion of the sanction upon which its pro-
tection and enjoyment had always been deemed depen-
dent under the Boyd, Weeks and Silverthorne cases.
Therefore, in extending the substantive protections of due
process to all constitutionally unreasonable searches—
state or federal—it was logically and constitutionally nec-
essary that the exclusion doctrine—an essential part of the
right to privacy—be also insisted upon as an essential
ingredient of the right newly recognized by the Wolf case.
In short, the admission of the new constitutional right by
Wolf could not consistently tolerate denial of its most
important constitutional privilege, namely, the exclusion of
the evidence which an accused had been forced to give by
reason of the unlawful seizure. To hold otherwise is to
grant the right but in reality to withhold its privilege and
enjoyment. Only last year the Court itself recognized that
the purpose of the exclusionary rule “is to deter—to com-
pel respect for the constitutional guaranty in the only
effectively available way—by removing the incentive to
disregard it.” . . .
Indeed, we are aware of no restraint, similar to that
rejected today, conditioning the enforcement of any other
basic constitutional right. The right to privacy, no less
important than any other right carefully and particularly
reserved to the people, would stand in marked contrast to
all other rights declared as “basic to a free society.” . . .This
Court has not hesitated to enforce as strictly against the
States as it does against the Federal Government the rights
of free speech and of a free press, the rights to notice and
to a fair, public trial, including, as it does, the right not
to be convicted by use of a coerced confession, however
logically relevant it be, and without regard to its reliability.
. . . And nothing could be more certain that that when a
coerced confession is involved, “the relevant rules of evi-
dence” are overridden without regard to “the incidence of
such conduct by the police,” slight or frequent. Why
should not the same rule apply to what is tantamount to
coerced testimony by way of unconstitutional seizure of
goods, papers, effects, documents, etc.? We find that, as to
the Federal Government, the Fourth and Fifth Amend-
ments and, as to the States, the freedom from uncon-
scionable invasions of privacy and the freedom from
convictions based upon coerced confessions do enjoy an
“intimate relation” in their perpetuation of “principles of
humanity and civil liberty [secured] . . . only after years of
struggle.” . . .They express “supplementing phases of the
1588 ERA 9: Postwar United States
same constitutional purpose—to maintain inviolate large
areas of personal privacy.” . . . The philosophy of each
Amendment and of each freedom is complementary to,
although not dependent upon, that of the other in its
sphere of influence—the very least that together they
assure in either sphere is that no man is to be convicted on
unconstitutional evidence. . . .
V.
Moreover, our holding that the exclusionary rule is an
essential part of both the Fourth and Fourteenth Amend-
ments is not only the logical dictate of prior cases, but it
also makes very good sense. There is no war between the
Constitution and common sense. Presently, a federal pros-
ecutor may make no use of evidence illegally seized, but a
State’s attorney across the street may, although he suppos-
edly is operating under the enforceable prohibitions of the
same Amendment. Thus the State, by admitting evidence
unlawfully seized, serves to encourage disobedience to the
Federal Constitution which it is bound to uphold. More-
over, as was said in Elkins, “[t]he very essence of a healthy
federalism depends upon the avoidance of needless con-
flict between state and federal courts.” . . . Such a conflict,
hereafter needless, arose this very Term, in Wilson v.
Schnettler, 1961, . . . in which, and in spite of the promise
made by Rea, we gave full recognition to our practice in
this regard by refusing to restrain a federal officer from
testifying in a state court as to evidence unconstitutionally
seized by him in the performance of his duties. Yet the
double standard recognized until today hardly put such a
thesis into practice. In non-exclusionary States, federal
officers, being human, were by it invited to and did, as our
cases indicate, step across the street to the State’s attorney
with their unconstitutionally seized evidence. Prosecution
on the basis of that evidence was then had in a state court
in utter disregard of the enforceable Fourth Amendment.
If the fruits of an unconstitutional search had been inad-
missible in both state and federal courts, this inducement
to evasion would have been sooner eliminated. There
would be no need to reconcile such cases as Rea and
Schnettler, each pointing up the hazardous uncertainties of
our heretofore ambivalent approach.
Federal-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. “However
much in a particular case insistence upon such rules may
appear as a technically that inures to the benefit of a guilty
person, the history of the criminal law proves that toler-
ance of shortcut methods in law enforcement impairs its
enduring effectiveness.” Miller v. United States, 1958. . . .
Denying shortcuts to only one of two cooperating law
enforcement agencies tends naturally to breed legitimate
suspicion of “working arrangements” whose results are
equally tainted. . . .
There are those who say, as did Justice (then Judge)
Cardozo, that under our constitutional exclusionary doc-
trine “[t]he criminal is to go free because the constable has
blundered.” . . . In some cases this will undoubtedly be the
result. But, as was said in Elkins, “there is another consid-
eration—the imperative of judicial integrity.” . . .The crim-
inal goes free, if he must, but it is the law that sets him free.
Nothing can destroy a government more quickly than its
failure to observe its own laws, or worse, its disregard of the
charter of its own existence. As Mr. Justice Brandeis, dis-
senting, said in Olmstead v. United States, 1928. . . . “Our
government is the potent, the omnipresent teacher. For
good or for ill, it teaches the whole people by its example
. . . If the government becomes a lawbreaker, it breeds con-
tempt for law; it invites every man to become a law unto
himself; it invites anarchy.” Nor can it lightly be assumed
that, as a practical matter, adoption of the exclusionary rule
fetters law enforcement. Only last year this Court expressly
considered that contention and found that “pragmatic evi-
dence of a sort” to the contrary was not wanting. . . .
“The federal courts themselves have operated under
the exclusionary rule of Weeks for almost half a century;
yet it has not been suggested either that the Federal
Bureau of Investigation has thereby been rendered inef-
fective, or that the administration of criminal justice in the
federal courts has thereby been disrupted. Moreover, the
experience of the states is impressive. . . . The movement
towards the rule of exclusion has been halting but seem-
ingly inexorable.” . . .
The ignoble shortcut to conviction left open to the
State tends to destroy the entire system of constitutional
restraints on which the liberties of the people rest. Having
once recognized that the right to privacy embodied in the
Fourth Amendment is enforceable against the States, and
that the right to be secure against rude invasions of privacy
by state officers is, therefore, constitutional in origin, we
can no longer permit that right to remain an empty
promise. Because it is enforceable in the same manner and
to like effect as other basic rights secured by the Due Pro-
cess Clause, we can no longer permit it to be revocable at
the whim of any police officer who, in the name of law
enforcement itself, chooses to suspend its enjoyment. Our
decision, founded on reason and truth, gives to the individ-
ual no more than that which the Constitution guarantees
him, to the police officer no less than that to which honest
law enforcement is entitled, and, to the courts, that judicial
integrity so necessary in the true administration of justice.
The judgment of the Supreme Court of Ohio is
reversed and the cause remanded for further proceedings
not inconsistent with this opinion.
Reversed and remanded.
Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1589
Source:
Supreme Court Reporter, Vol. 81, pp. 1,684–1,708.
Baker v. Carr, 1962
U.S. Supreme Court decision issued March 26, 1962, ruling
that state legislative apportionment practices were subject to
judicial review and control. In 1959 some Tennessee citizens
sued state election officials for depriving them of federal con-
stitutional rights because no legislative reapportionment had
been made in the state since 1901, despite a state constitu-
tional requirement that the legislature redraw districts for sen-
ators and representatives at least every 10 years according to
the number of qualified voters in each county or district. The
lack of reapportionment had produced inequities in represen-
tation. The Supreme Court reversed
Colegrove v. Green
(1946)
in deciding that legislative districting controversies could be
heard by federal courts.
The U.S. Supreme Court followed
Baker
June 15, 1964,
by ruling in
Reynolds v. Sims
(377 U.S. 533) that members of
both houses of the state legislatures must be elected from
equal population districts. In establishing the principle of “one
person/one vote,” the Court assumed a basic standard of
equality among voters and invoked the principles of represen-
tative government, majority rule, and equal protection of the
laws. Chief Justice Earl Warren wrote: “Legislators represent
people, not trees or acres. Legislators are elected by votes, not
farms or cities or economic interests.” Unequal districting, he
said, debases a citizen’s right to vote.
Mr. Justice Whittaker did not participate in the decision of
this case.
________________________
h
_______________________
(excerpt)
Mr. Justice Brennan delivered the opinion of the Court.
This civil action was brought under 42 U.S.C. Sections
1983 and 1988 to redress the alleged deprivation of federal
constitutional rights. The complaint, alleging that by
means of a 1901 statute of Tennessee apportioning the
members of the General Assembly among the State’s 95
counties, “these plaintiffs and others similarly situated, are
denied the equal protection of the laws accorded them by
the Fourteenth Amendment to the Constitution of the
United States by virtue of the debasement of their votes,”
was dismissed by a three-judge court . . . in the Middle
District of Tennessee. The court held that it lacked juris-
diction of the subject matter and also that no claim was
stated upon which relief could be granted. . . . We hold
that the dismissal was error, and remand the cause to the
District Court for trial and further proceedings consistent
with this opinion.
The General Assembly of Tennessee consists of the
Senate with 33 members and the House of Representa-
tives with 99 members. The Tennessee Constitution pro-
vides in Art. II as follows:
“Sec. 3. Legislative authority—Term of office.—The
Legislative authority of this State shall be vested in a Gen-
eral Assembly, which shall consist of a Senate and House
of Representatives, both dependent on the people; who
shall hold their offices for two years from the day of the
general election.
“Sec. 4. Census.—An enumeration of the qualified
voters, and an apportionment of the Representatives in the
General Assembly, shall be made in the year one thousand
eight hundred and seventy-one, and within every subse-
quent term of ten years.
“Sec. 5. Apportionment of representatives.—The
number of Representatives shall, at the several periods of
making the enumeration, be apportioned among the sev-
eral counties or districts, according to the number of qual-
ified voters in each; and shall not exceed seventy-five, until
the population of the State shall be one million and a half,
and shall never exceed ninety-nine; Provided, that any
county having two-thirds of the ratio shall be entitled to
one member.
“Sec 6. Apportionment of senators.—The number of
Senators shall, at the several periods of making the enumer-
ation, be apportioned among the several counties or districts
according to the number of qualified electors in each, and
shall not exceed one-third the number of representatives. In
apportioning the Senators among the different counties, the
fraction that may be lost by any county or counties, in the
apportionment of members to the House of Representa-
tives, shall be made up to such county or counties in the
Senate, as near as may be practicable. When a district is
composed of two or more counties, they shall be adjoining;
and no county shall be divided in forming a district.”
Thus, Tennessee’s standard for allocating legislative
representation among her counties is the total number of
qualified voters resident in the respective counties, subject
only to minor qualifications. Decennial reapportionment
in compliance with the constitutional scheme was effected
by the General Assembly each decade from 1871 to 1901.
. . . In 1901 the General Assembly abandoned separate
enumeration in favor of reliance upon the Federal Census
and passed the Apportionment Act here in controversy. In
the more than 60 years since that action, all proposals in
both Houses of the General Assembly for the reapportion-
ment have failed to pass.
Between 1901 and [1960], Tennessee has experienced
substantial growth and redistribution of her population. In
1901 the population was 2,020,616, of whom 487,380 were
eligible to vote. The 1960 Federal Census reports the
1590 ERA 9: Postwar United States
State’s population at 3,567,089, of whom 2,092,891 are eli-
gible to vote. The relative standings of the counties in
terms of qualified voters have changed significantly. It is
primarily the continued application of the 1901 Appor-
tionment Act to this shifted and enlarged voting popula-
tion which gives rise to the present controversy.
Indeed, the complaint alleges that the 1901 statute,
even as of the time of its passage, “made no apportionment
of Representatives and Senators in accordance with the
constitutional formula . . . , but instead arbitrarily and
capriciously apportioned representatives in the Senate and
House without reference . . . to any logical or reasonable
formula whatever.” It is further alleged that “because of
the population changes since 1900, and the failure of the
Legislature to reapportion itself since 1901,” the 1901
statute became “unconstitutional and obsolete.” Appel-
lants also argue that, because of the composition of the leg-
islature effected by the 1901 Apportionment Act, redress
in the form of a state constitutional amendment to change
the entire mechanism for reapportioning, or any other
change short of that, is difficult or impossible. The com-
plaint concludes that “these plaintiffs and others similarly
situated, are denied the equal protection of the laws
accorded them by the Fourteenth Amendment to the
Constitution of the United States by virtue of the debase-
ment of their votes.” They seek a declaration that the 1901
statute is unconstitutional and an injunction restraining the
appellees from acting to conduct any further elections
under it. They also pray that unless and until the General
Assembly enacts a valid reapportionment, the District
Court should either decree a reapportionment by mathe-
matical application of the Tennessee constitutional formu-
lae to the most recent Federal Census figures, or direct the
appellees to conduct legislative elections, primary and gen-
eral, at large. They also pray for such other and further
relief as may be appropriate.
I.
The District Court’s Opinion and Order of Dismissal.
Because we deal with this case on appeal from an
order of dismissal granted on appellees’ motions, precise
identification of the issues presently confronting us
demands clear exposition of the grounds upon which the
District Court rested in dismissing the case. The dismissal
order recited that the court sustained the appellees’
grounds “(1) that the Court lacks jurisdiction of the subject
matter, and (2) that the complaint fails to state a claim
upon which relief can be granted . . .”
* * *
The court proceeded to explain its action as turning on the
case’s presenting a “question of the distribution of political
strength for legislative purposes.” For,
“From a review of [numerous Supreme Court] . . .
decisions there can be no doubt that the federal rule, as
enunciated and applied by the Supreme Court, is that the
federal courts, whether from a lack of jurisdiction or from
the inappropriateness of the subject matter for judicial
consideration, will not intervene in cases of this type to
compel legislative reapportionment.” . . .
The court . . . made clear that its dismissal reflected a
view not of doubt that violation of constitutional rights was
alleged, but of a court’s impotence to correct that violation.
* * *
In light of the District Court’s treatment of the case, we
hold today only (a) that the court possessed jurisdiction of
the subject matter; (b) that a justiciable cause of action is
stated upon which appellants would be entitled to appro-
priate relief; and (c) because appellees raise the issue
before this Court, that the appellants have standing to
challenge the Tennessee apportionment statutes. Beyond
noting that we have no cause at this stage to doubt the Dis-
trict Court will be able to fashion relief if violations of con-
stitutional rights are found, it is improper now to consider
what remedy would be most appropriate if appellants pre-
vail at the trial.
II.
Jurisdiction of the Subject Matter.
The District Court was uncertain whether our cases
withholding federal judicial relief rested upon a lack of
federal jurisdiction or upon the inappropriateness of the
subject matter for judicial consideration—what we have
designated “nonjusticiability.” The distinction between the
two grounds is significant. In the instance of nonjusticia-
bility, consideration of the cause is not wholly and imme-
diately foreclosed; rather, the Court’s inquiry necessarily
proceeds to the point of deciding whether the duty
asserted can be judicially identified and its breach judi-
cially determined, and whether protection for the right
asserted can be judicially molded. In the instance of lack of
jurisdiction the cause either does not “arise under” the
Federal Constitution, laws or treaties (or fall within one of
the other enumerated categories of Art. III, Section 2), or
is not a “case or controversy” within the meaning of that
section; or the cause is not one described by any jurisdic-
tional statute. Our conclusion . . . that this cause presents
no nonjusticiable “political question” settles the only pos-
sible doubt that it is a case or controversy. Under the pre-
sent heading of “Jurisdiction of the Subject Matter” we
hold only that the matter set forth in the complaint does
arise under the Constitution and is within 28 U.S.C. Sec-
tion 1343, 28 U.S.C.A. Section 1343.
Article III, Section 2, of the Federal Constitution pro-
vides that “The judicial Power shall extend to all Cases, in
Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1591