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rotected against state encroachment were declared to be those ‘‘which owe their existence to the Federal Government, its National character, its Constitution, or its laws.’’ 16 These privileges, however, had been available to United States citizens and protected from state interference by operation of federal supremacy even prior to the adoption of the Fourteenth Amendment. The Slaughter-House Cases, therefore, reduced the privileges or immunities clause to a superfluous reiteration of a prohibition already operative against the states. Although the Slaughter-House Cases Court expressed a reluctance to enumerate those privileges and immunities of United States citizens which are protected against state encroachment, it nevertheless felt obliged to suggest some. Among those which it then identified were the right of access to the seat of Government and to the seaports, subtreasuries, land officers, and courts of justice in the several States, the right to demand protection of the Federal Government on the high seas or abroad, the right of assembly, the privilege of habeas corpus, the right to use the navigable waters of the United States, and rights secured by treaty. 17 In Twining v. New Jersey, 18 the Court recognized ‘‘among the rights and privileges’’ of national citizenship the right to pass freely from State to State, 19 the right to petition Congress for a redress VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1676 AMENDMENT 14—RIGHTS GUARANTEED (1969). Three Justices ascribed the source to this clause in Oregon v. Mitchell, 400 U.S. 112, 285–87 (1970) (Justices Stewart and Blackmun and Chief Justice Burger, concurring in part and dissenting in part). 20 Citing United States v. Cruikshank, 92 U.S. 542 (1876). 21 Citing Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley v. Sinkler, 179 U.S. 58 (1900). Note Justice Douglas’ reliance on this clause in Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (concurring in part and dissenting in part). 22 Citing United States v. Waddell, 112 U.S. 76 (1884). 23 Citing Logan v. United States, 144 U.S. 263 (1892). 24 Citing In re Quarles and Butler, 158 U.S. 532 (1895). 25 Crutcher v. Kentucky, 141 U.S. 47, 57 (1891). 26 Colgate v. Harvey, 296 U.S. 404 (1935), which was overruled five years later, see Madden v. Kentucky, 309 U.S. 83, 93 (1940), represented the first attempt by the Court since adoption of the Fourteenth Amendment to convert the privileges or immunities clause into a source of protection of other than those ‘‘interests growing out of the relationship between the citizen and the national government.’’ In Harvey, the Court declared that the right of a citizen to engage in lawful business in other states, such as by entering into contracts or by loaning money, was a privilege of national citizenship, and this privilege was abridged by a state income tax law which excluded interest received on money from loans from taxable income only if the loan was made within the State. 27 307 U.S. 496, 510–18 (1939) (Justices Roberts and Black; Chief Justice Hughes may or may not have concurred on this point. Id. at 532). Justices Stone and Reed preferred to base the decision on the due process clause. Id. at 518. 28 314 U.S. 160, 177–83 (1941). 29 See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (Justice Douglas); id. at 285–87 (Justices Stewart and Blackmun and Chief Justice Burger). 30 E.g., Holden v. Hardy, 169 U.S. 366, 380 (1898) (statute limiting hours of labor in mines); Williams v. Fears, 179 U.S. 270, 274 (1900) (statute taxing the business of hiring persons to labor outside the State); Wilmington Mining Co. v. Fulton, 205 U.S. 60, 73 (1907) (statute requiring employment of only licensed mine managers and examiners and imposing liability on the mine owner for failure to furnish a reasonably safe place for workmen); Heim v. McCall, 239 U.S. 175 (1915); Crane of grievances, 20 the right to vote for national officers, 21 the right to enter public lands, 22 the right to be protected against violence while in the lawful custody of a United States marshal, 23 and the right to inform the United States authorities of violation of its laws. 24 Earlier, in a decision not mentioned in Twining, the Court had also acknowledged that the carrying on of interstate commerce is ‘‘a right which every citizen of the United States is entitled to exercise.’’ 25 In modern times, the Court has continued the minor role accorded to the clause, only occasionally manifesting a disposition to enlarge the restraint which it imposes upon state action. 26 In Hague v. CIO, 27 two and perhaps three justices thought that the freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States citizen, and in Edwards v. California 28 four Justices were prepared to rely on the clause. 29 In many other respects, however, claims based on this clause have been rejected. 30 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00006 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1677 v. New York, 239 U.S. 195 (1915) (statute restricting employment on state public works to citizens of the United States, with a preference to citizens of the State); Missouri Pacific Ry. v. Castle, 224 U.S. 541 (1912) (statute making railroads liable to employees for injuries caused by negligence of fellow servants and abolishing the defense of contributory negligence); Western Union Tel. Co. v. Milling Co., 218 U.S. 406 (1910) (statute prohibiting a stipulation against liability for negligence in delivery of interstate telegraph messages); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1873); In re Lockwood, 154 U.S. 116 (1894) (refusal of state court to license a woman to practice law); Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879) (law taxing a debt owed a resident citizen by a resident of another State and secured by mortgage of land in the debtor’s State); Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129 (1874); Mugler v. Kansas, 123 U.S. 623 (1887); Crowley v. Christensen, 137 U.S. 86, 91 (1890); Giozza v. Tiernan, 148 U.S. 657 (1893) (statutes regulating the manufacture and sale of intoxicating liquors); In re Kemmler, 136 U.S. 436 (1890) (statute regulating the method of capital punishment); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (statute regulating the franchise to male citizens); Pope v. Williams, 193 U.S. 621 (1904) (statute requiring persons coming into a State to make a declaration of intention to become citizens and residents thereof before being permitted to register as voters); Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922) (statute restricting dower, in case wife at time of husband’s death is a nonresident, to lands of which he died seized); Walker v. Sauvinet, 92 U.S. 90 (1876) (statute restricting right to jury trial in civil suits at common law); Presser v. Illinois, 116 U.S. 252, 267 (1886) (statute restricting drilling or parading in any city by any body of men without license of the Governor); Maxwell v. Dow, 176 U.S. 581, 596, 597– 98 (1900) (provision for prosecution upon information, and for a jury (except in capital cases) of eight persons); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 71 (1928) (statute penalizing the becoming or remaining a member of any oathbound association (other than benevolent orders, and the like) with knowledge that the association has failed to file its constitution and membership lists); Palko v. Connecticut, 302 U.S. 319 (1937) (statute allowing a State to appeal in criminal cases for errors of law and to retry the accused); Breedlove v. Suttles, 302 U.S. 277 (1937) (statute making the payment of poll taxes a prerequisite to the right to vote); Madden v. Kentucky, 309 U.S. 83, 92–93 (1940), (overruling Colgate v. Harvey, 296 U.S. 404, 430 (1935)) (statute whereby deposits in banks outside the State are taxed at 50¢ per $100); Snowden v. Hughes, 321 U.S. 1 (1944) (the right to become a candidate for state office is a privilege of state citizenship, not national citizenship); MacDougall v. Green, 335 U.S. 281 (1948) (Illinois Election Code requirement that a petition to form and nominate candidates for a new political party be signed by at least 200 voters from each of at least 50 of the 102 counties in the State, notwithstanding that 52% of the voters reside in only one county and 87% in the 49 most populous counties); New York v. O’Neill, 359 U.S. 1 (1959) (Uniform Reciprocal State Law to secure attendance of witnesses from within or without a State in criminal proceedings); James v. Valtierra, 402 U.S. 137 (1971) (a provision in a state constitution to the effect that low-rent housing projects could not be developed, constructed, or acquired by any state governmental body without the affirmative vote of a majority of those citizens participating in a community referendum). 31 332 U.S. 633, 640 (1948). In Oyama v. California, 31 the Court, in a single sentence, agreed with the contention of a native-born youth that a state Alien Land Law, which resulted in the forfeiture of property purchased in his name with funds advanced by his parent, a Japanese alien ineligible for citizenship and precluded from owning land, deprived him ‘‘of his privileges as an American citizen.’’ The right to acquire and retain property had previously not been set forth in any of the enumerations as one of the privileges protected against VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00007 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1678 AMENDMENT 14—RIGHTS GUARANTEED 32 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now 42 U.S.C. § 1982, as amended. 33 See The Right to Travel, infra. 34 Saenz v. Roe, 526 U.S. 489 (1999). 35 526 U.S. at 525 (Thomas, J., dissenting). 36 The right of United States citizens to choose their state of residence is specifically protected by the first sentence of the 14th Amendment ‘‘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. . . .’’ state abridgment, although a federal statute enacted prior to the proposal and ratification of the Fourteenth Amendment did confer on all citizens the same rights to purchase and hold real property as white citizens enjoyed. 32 In a doctrinal shift of uncertain significance, the Court will apparently evaluate challenges to durational residency requirements, previously considered as violations of the right to travel derived from the Equal Protection Clause, 33 as a potential violation of the Privileges or Immunities Clause. Thus, where a California law restricted the level of welfare benefits available to Californians who have been residents for less than a year to the level of benefits available in the State of their prior residence, the Court found a violation of the right of newly-arrived citizens to be treated the same as other state citizens. 34 Despite suggestions that this opinion will open the door to ‘‘guaranteed equal access to all public benefits,’’ 35 it seems more likely that the Court is protecting the privilege of being treated immediately as a full citizen of the state one chooses for permanent residence. 36 DUE PROCESS OF LAW Generally Due process under the Fourteenth Amendment can be broken down into two categories—procedural due process and substantive due process. Procedural due process, based on principles of ‘‘fundamental fairness,’’ addresses which legal procedures are required to be followed in state proceedings. Relevant issues, as discussed in detail below, include notice, opportunity for hearing, confrontation and cross-examination, discovery, basis of decision, and availability of counsel. Substantive due process, while also based on principles of ‘‘fundamental fairness,’’ is used to evaluate whether a law can fairly be applied by states at all, regardless of the procedure followed. Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has alternately emphasized the importance of economic and noneconomic matters. In theory, the issues of procedural and substantive due process are closely related. In reality, substantive due VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00008 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1679 37 The Privileges or Immunities Clause, more so than the Due Process Clause, appears at first glance to speak directly to the issue of state intrusions on substantive rights and privileges— ‘‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .’’. See AKHIL REED AMAR, THE BILL OF RIGHTS 163-180 (1998). As discussed earlier, however, the Court limited the effectiveness of that clause soon after the ratification of the 14th Amendment. See Privileges or Immunities, supra. Instead, the Due Process Clause, though selective incorporation, has become the basis for the Court to recognize important substantive rights against the states. 38 See Bill of Rights, Fourteenth Amendment, supra. 39 See Graham, The ‘Conspiracy Theory’ of the Fourteenth Amendment, 47 YALE L. J. 371 (1938). 40 Munn v. Illinois, 94 U.S. 113 (1877). In a case arising under the Fifth Amendment, decided almost at the same time, the Court explicitly declared the United States ‘‘equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.’’ Sinking Fund Cases, 99 U.S. 700, 718–19 (1879). process has had greater political import, as significant portions of a state legislature’s substantive jurisdiction can be restricted by its application. While the extent of the rights protected by substantive due process may be controversial, its theoretical basis is firmly established and forms the basis for much of modern constitutional case law. Passage of the Reconstruction Amendments (13th, 14th and 15th) gave the federal courts the authority to intervene when a state threatened fundamental rights of its citizens, 37 and one of the most important doctrines flowing from this is the application of the Bill of Rights to the states through the due process clause. 38 Through the process of ‘‘selective incorporation,’’ most of the provisions of the first eight Amendments such as free speech, freedom of religion, and protection against unreasonable searches and seizures are applied against the states as they are against the federal government. Though application of these rights against the states is no longer controversial, the incorporation of other substantive rights, as is discussed in detail below, has been. Definitions ‘‘Person’’.—The due process clause provides that no States shall deprive any ‘‘person’’ of ‘‘life, liberty or property’’ without due process of law. A historical controversy has been waged concerning whether the framers of the Fourteenth Amendment intended the word ‘‘person’’ to mean only natural persons, or whether the word was substituted for the word ‘‘citizen’’ with a view to protecting corporations from oppressive state legislation. 39 As early as the 1877 Granger Cases 40 the Supreme Court upheld various regulatory state laws without raising any question as to whether a corporation could advance due process claims. Further, there is no doubt that a corporation may not be deprived of its property without due proc- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1680 AMENDMENT 14—RIGHTS GUARANTEED 41 Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co. v. Paramount Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge, 278 U.S. 105 (1928). 42 As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398 U.S. 306, 309 (1970). 43 Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); Western Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). Earlier, in Northern Securities Co. v. United States, 193 U.S. 197, 362 (1904), a case interpreting the federal antitrust law, Justice Brewer, in a concurring opinion, had declared that ‘‘a corporation . . . is not endowed with the inalienable rights of a natural person.’’ 44 Grosjean v. American Press Co., 297 U.S. 233, 244 (1936) (‘‘a corporation is a ‘person’ within the meaning of the equal protection and due process of law clauses’’). In First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of state restraints upon expression by corporations, the Court did not determine that corporations have First Amendment liberty rights—and other constitutional rights—but decided instead that expression was protected, irrespective of the speaker, because of the interests of the listeners. See id. at 778 n.14 (reserving question). But see id. at 809, 822 (Justices White and Rehnquist dissenting) (corporations as creatures of the state have the rights state gives them). 45 Pennie v. Reis, 132 U.S. 464 (1889); Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 (1900); Tyler v. Judges of Court of Registration, 179 U.S. 405, 410 (1900); Straus v. Foxworth, 231 U.S. 162 (1913); Columbus & G. Ry. v. Miller, 283 U.S. 96 (1931). 46 City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919); City of Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36 (1933). But see Madison School Dist. v. WERC, 429 U.S. 167, 175 n. 7 (1976) (reserving question whether municipal corporation as an employer has a First Amendment right assertable against State). 47 Coleman v. Miller, 307 U.S. 433, 441, 442, 443, 445 (1939); Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Hwy. Dept. v. Barnwell Bros., ess of law. 41 While various decisions have held that the ‘‘liberty’’ guaranteed by the Fourteenth Amendment is the liberty of natural, 42 not artificial, persons, 43 nevertheless, in 1936, a newspaper corporation successfully objected that a state law deprived it of liberty of the press. 44 A separate question is the ability of a government official to invoke the due process clause to protect the interests of his office. Ordinarily, the mere official interest of a public officer, such as the interest in enforcing a law, has not been deemed adequate to enable him to challenge the constitutionality of a law under the Fourteenth Amendment. 45 Similarly, municipal corporations have no standing ‘‘to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator,’’ the State. 46 However, state officers are acknowledged to have an interest, despite their not having sustained any ‘‘private damage,’’ in resisting an ‘‘endeavor to prevent the enforcement of laws in relation to which they have official duties,’’ and, accordingly, may apply to federal courts for the ‘‘review of decisions of state courts declaring state statutes which [they] seek to enforce to be repugnant to the’’ Fourteenth Amendment. 47 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00010 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1681 303 U.S. 177 (1938). The converse is not true, however, and the interest of a state official in vindicating the Constitution gives him no legal standing to attack the constitutionality of a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231 U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also Coleman v. Miller, 307 U.S. 433, 437–46 (1939). 48 This power is not confined to the suppression of what is offensive, disorderly, or unsanitary. Long ago Chief Justice Marshall described the police power as ‘‘that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government.’’ Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 202 (1824). See California Reduction Co. v. Sanitary Works, 199 U.S. 306, 318 (1905); Chicago B. & Q. Ry. v. Drainage Comm’rs, 200 U.S. 561, 592 (1906); Bacon v. Walker, 204 U.S. 311 (1907); Eubank v. Richmond, 226 U.S. 137 (1912); Schmidinger v. Chicago, 226 U.S. 578 (1913); Sligh v. Kirkwood, 237 U.S. 52, 58– 59 (1915); Nebbia v. New York, 291 U.S. 502 (1934); Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (police power encompasses preservation of historic landmarks; land-use restrictions may be enacted to enhance the quality of life by preserving the character and aesthetic features of city); City of New Orleans v. Dukes, 427 U.S. 297 (1976); Young v. American Mini Theatres, 427 U.S. 50 (1976). 49 Hudson Water Co. v. McCarter, 209 U.S. 349 (1908); Eubank v. Richmond, 226 U.S. 137, 142 (1912); Erie R.R. v. Williams, 233 U.S. 685, 699 (1914); Sligh v. Kirkwood, 237 U.S. 52, 58–59 (1915); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Panhandle Eastern Pipeline Co. v. Highway Comm’n, 294 U.S. 613, 622 (1935). ‘‘It is settled [however] that neither the ‘contract’ clause nor the ‘due process’ clause had the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise.’’ Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558 (1914). 50 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Welch v. Swasey, 214 U.S. 91, 107 (1909). See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978); Agins v. City of Tiburon, 447 U.S. 255 (1980). See also analysis of ‘‘Regulatory Takings’’ under the Fifth Amendment. Although the Fourteenth Amendment does not contain a ‘‘takings’’ provisions such as is found in the Fifth Amendment, the Court has held that such provision has been incorporated. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 159 (1980). 51 Liggett Co. v. Baldridge , 278 U.S. 105, 111–12 (1928); Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 197 (1936). ‘‘Property’’ and Police Power.—States have an inherent ‘‘police power’’ to promote public safety, health, morals, public convenience, and general prosperity, 48 but the extent of the power may vary based on the subject matter over which it is exercised. 49 If a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid. 50 Thus, the means employed to affect its exercise can be neither arbitrary nor oppressive but must bear a real and substantial relation to an end which is public, specifically, the public health, safety, or morals, or some other aspect of the general welfare. 51 An ulterior public advantage, however, may justify a comparatively insignificant taking of private property for what seems to be VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00011 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1682 AMENDMENT 14—RIGHTS GUARANTEED 52 Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911) (bank may be required to contribute to fund to guarantee the deposits of contributing banks). 53 Erie R.R. v. Williams, 233 U.S. 685, 700 (1914). 54 New Orleans Public Service v. New Orleans, 281 U.S. 682, 687 (1930). 55 Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931). 56 See the tentative effort in Hampton v. Mow Sun Wong, 426 U.S. 88, 102 & n. 23 (1976), apparently to expand upon the concept of ‘‘liberty’’ within the meaning of the Fifth Amendment’s due process clause and necessarily therefore the Fourteenth’s. 57 See the substantial confinement of the concept in Meachum v. Fano, 427 U.S. 215 (1976); and Montanye v. Haymes, 427 U.S. 236 (1976), in which the Court applied to its determination of what is a liberty interest the ‘‘entitlement’’ doctrine developed in property cases, in which the interest is made to depend upon state recognition of the interest through positive law, an approach contrary to previous due process-liberty analysis. Cf. Morrissey v. Brewer, 408 U.S. 471, 482 (1972). For more recent cases, see DeShaney v. Winnebago County Social Servs. Dep’t, 489 U.S. 189 (1989) (no Due Process violation for failure of state to protect an abused child from his parent, even though abuse had been detected by social service agency); Collins v. City of Harker Heights, 503 U.S. 115 (1992) (failure of city to warn its employees about workplace hazards does not violate due process; the due process clause does not impose a duty on the city to provide employees with a safe working environment); County of Sacramento v. Lewis, 523 U.S. 833 (1998) (high-speed automobile chase by police officer causing death through deliberate or reckless indifference to life would not violate the Fourteenth Amendment’s guarantee of substantive due process). a private use. 52 Mere ‘‘cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a state to exert its reserved power or its police power.’’ 53 Moreover, it is elementary that enforcement of a law passed in the legitimate exertion of the police power is not a taking without due process of law, even if the cost is borne by the regulated. 54 Initial compliance with a regulation which is valid when a

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