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611 (1905). 512 King v. Mullins, 171 U.S. 404 (1898); Chapman v. Zobelein, 237 U.S. 135 (1915). 513 Leigh v. Green, 193 U.S. 79 (1904). 514 Davidson v. City of New Orleans, 96 U.S. 97, 107 (1878). 515 Dewey v. Des Moines, 173 U.S. 193 (1899). grant proportionate deductions for all prior taxes which the personal representative can prove to have been paid. 507 Of, it is was found not to be a violation of property rights when a state asserts a prior lien against trucks repossessed by a vendor from a carrier (1) accruing from the operation by the carrier of trucks not sold by the vendors, either before or during the time the carrier operated the vendors’ trucks, or (2) arising from assessments against the carrier, after the trucks were repossessed, but based upon the carrier’s operations preceding such repossession. Such lien need not be limited to trucks owned by the carrier because the wear on the highways occasioned by the carrier’s operation is in no way altered by the vendor’s retention of title. 508 As a State may provide in advance that taxes will bear interest from the time they become due, it may with equal validity stipulate that taxes which have become delinquent will bear interest from the time the delinquency commenced. Further, a State may adopt new remedies for the collection of taxes and apply these remedies to taxes already delinquent. 509 After liability of a taxpayer has been fixed by appropriate procedure, collection of a tax by distress and seizure of his person does not deprive him of liberty without due process of law. 510 Nor is a foreign insurance company denied due process of law when its personal property is distrained to satisfy unpaid taxes. 511 The requirements of due process are fulfilled by a statute which, in conjunction with affording an opportunity to be heard, provides for the forfeiture of titles to land for failure to list and pay taxes thereon for certain specified years. 512 No less constitutional, as a means of facilitating collection, is an in rem proceeding, to which the land alone is made a party, whereby tax liens on land are foreclosed and all preexisting rights or liens are eliminated by a sale under a decree. 513 On the other hand, while the conversion of an unpaid special assessment into both a personal judgment against the owner as well as a charge on the land is consistent with the Fourteenth Amendment, 514 a judgment imposing personal liability against a nonresident taxpayer over whom the state court acquired no jurisdiction is void. 515 Apart from such restraints, how- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00090 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1761 516 League v. Texas, 184 U.S. 156, 158 (1902). See also Straus v. Foxworth, 231 U.S. 162 (1913). 517 Londoner v. Denver, 210 U.S. 373 (1908). See also Kentucky Railroad Tax Cases, 115 U.S. 321, 331 (1885); Winona & St. Peter Land Co. v. Minnesota, 159 U.S. 526, 537 (1895); Merchants Bank v. Pennsylvania, 167 U.S. 461, 466 (1897); Glidden v. Harrington, 189 U.S. 255 (1903). 518 A state statute may designate a corporation as the agent of a nonresident stockholder to receive notice and to represent him in proceedings for correcting assessment. Corry v. Baltimore, 196 U.S. 466, 478 (1905). 519 Leigh v. Green, 193 U.S. 79, 92–93 (1904). Thus, an assessment for taxes and a notice of sale when such taxes are delinquent will be sustained as long as there is a description of the land and the owner knows that the property so described is his, even if that description is not technically correct. Ontario Land Co. v. Yordy, 212 U.S. 152 (1909). Where tax proceedings are in rem, owners are bound to take notice thereof, and to pay taxes on their property, even if the land is assessed to unknown or other persons. Thus, if an owner stands by and sees his property sold for delinquent taxes, he is not thereby wrongfully deprived of his property. Id. See also Longyear v. Toolan, 209 U.S. 414 (1908). 520 Covey v. Town of Somers, 351 U.S. 141 (1956). 521 Nelson v. New York City, 352 U.S. 103 (1956). This conclusion was unaffected by the disparity between the value of the land taken and the amount owed ever, a State is free to adopt new remedies for the collection of taxes and even to apply new remedies to taxes already delinquent. 516 Sufficiency and Manner of Giving Notice.—Notice of tax assessments or liabilities, insofar as it is required, may be either personal, by publication, by statute fixing the time and place of hearing, 517 or by delivery to a statutorily designated agent. 518 As regards land, ‘‘where the State . . . [desires] to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested, who are ‘so minded,’ to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment. . .’’ In fact, compliance with statutory notice requirements combined with actual notice to owners of land can be sufficient in an in rem case , even if there are technical defects in such notice. 519 Whether statutorily required notice is sufficient may vary based on particular circumstances. Thus, where a taxpayer was not legally competent, no guardian had not been appointed and town officials were aware of these facts, notice of a foreclosure was defective, even though the tax delinquency was mailed to her, published in local papers, and posted in the town post office. 520 On the other hand, due process was not denied to appellants who were unable to avert foreclosure on certain trust lands (based on liens for unpaid water charges) because their own bookkeeper failed to inform them of the receipt of mailed notices. 521 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00091 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1762 AMENDMENT 14—RIGHTS GUARANTEED the city. Having issued appropriate notices, the city cannot be held responsible for the negligence of the bookkeeper and the managing trustee in overlooking arrearages on tax bills, nor is it obligated to inquire why appellants regularly paid real estate taxes on their property. 522 Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930). 523 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907). 524 Carpenter v. Shaw, 280 U.S. 363 (1930). See also Ward v. Love County, 253 U.S. 17 (1920). In this as in other areas, the state must provide procedural safeguards against imposition of an unconstitutional tax. These procedures need not apply predeprivation, but a state that denies predeprivation remedy by requiring that tax payments be made before objections are heard must provide a postdeprivation remedy. McKesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S. 18 (1990). See also Reich v. Collins, 513 U.S. 106 (1994) (violation of due process to hold out a post-deprivation remedy for unconstitutional taxation and then, after the disputed taxes had been paid, to declare that no such remedy exists); Newsweek, Inc. v. Florida Dep’t of Revenue, 522 U.S. 442 (1998) (per curiam) (violation of due process to limit remedy to one who pursued pre-payment of tax, where litigant reasonably relied on apparent availability of post-payment remedy). 525 Carpenter v. Shaw, 280 U.S. 363 (1930). 526 Farncomb v. Denver, 252 U.S. 7 (1920). 527 Pullman Co. v. Knott, 235 U.S. 23 (1914). Sufficiency of Remedy.—When no other remedy is available, due process is denied by a judgment of a state court withholding a decree in equity to enjoin collection of a discriminatory tax. 522 Requirements of due process are similarly violated by a statute which limits a taxpayer’s right to challenge an assessment to cases of fraud or corruption, 523 and by a state tribunal which prevents a recovery of taxes imposed in violation of the Constitution and laws of the United States by invoking a state law limiting suits to recover taxes alleged to have been assessed illegally to taxes paid at the time and in the manner provided by said law. 524 In the case of a tax held unconstitutional as a discrimination against interstate commerce and not invalidated in its entirety, the state has several alternatives for equalizing incidence of the tax: it may pay a refund equal to the difference between the tax paid and the tax that would have been due under rates afforded to in-state competitors; it may assess and collect back taxes from those competitors; or it may combine the two approaches. 525 Laches.—Persons failing to avail themselves of an opportunity to object and be heard cannot thereafter complain of assessments as arbitrary and unconstitutional. 526 Likewise a car company, which failed to report its gross receipts as required by statute, has no further right to contest the state comptroller’s estimate of those receipts and his adding thereto the 10 percent penalty permitted by law. 527 Eminent Domain The due process clause of the Fourteenth Amendment has been held to require that when a state or local governmental body, or VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00092 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1763 528 See analysis under ‘‘National Eminent Domain Power,’’ Fifth Amendment, supra. 529 See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (Cambridge: 1977). 530 See supra Bill of Rights, ‘‘Fourteenth Amendment’’. 531 See Roe v. Wade, 410 U.S. 113, 164 (1973). a private body exercising delegated power, takes private property it must provide just compensation and take only for a public purpose. Applicable principles are discussed under the Fifth Amendment. 528 Fundamental Rights (Noneconomic Substantive Due Process) A counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. The concept has, over time, come to include a number of disparate lines of cases, and various labels have been applied to the rights protected, including ‘‘fundamental rights,’’ ‘‘privacy rights,’’ ‘‘liberty interests’’ and ‘‘incorporated rights.’’ The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law, 529 serves as the basis for some of the most significant constitutional holdings of our time. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the ‘‘incorporation’’ of fundamental rights. 530 Other noneconomic due process holdings, however, such as the cases establishing the right of a woman to have an abortion, 531 remain controversial. Development of the Right of Privacy.—More so than other areas of law, noneconomic substantive due process seems to have started with few fixed precepts. Were the rights being protected property rights (and thus really protected by economic due process) or were they individual liberties? What standard of review needed to be applied? What were the parameters of such rights once identified? For instance, did a right of ‘‘privacy’’ relate to protecting physical spaces such as one’s home, or was it related to the issue of autonomy to make private, intimate decisions? Once a right was identified, often using abstract labels, how far could such an abstraction be extended? Did protecting the ‘‘privacy’’ of the decisions whether to have a family also include the right to make decisions regarding sexual intimacy? While many of these issues have, over time, been resolved, others remain. VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00093 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1764 AMENDMENT 14—RIGHTS GUARANTEED 532 Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890). 533 See Olmstead v. United States, 277 U.S. 438 (1928) (J. Brandeis, dissenting) (arguing against the admissibility in criminal trials of secretly taped telephone conversations). In Olmstead, Justice Brandeis said: ‘‘The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness . . . . They sought to protect Americans in their beliefs, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.’’ 277 U.S. at 473. 534 262 U.S. 390 (1923). Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923). 535 268 U.S. 510 (1925). One of the earliest formulations of noneconomic substantive due process was the right to privacy. This right was first proposed by Samuel Warren and Louis Brandeis in an 1890 Harvard Law Review article 532 as a unifying theme to various common law protections of the ‘‘right to be left alone,’’ including the developing laws of nuisance, libel, search and seizure, and copyright. According to the authors, ‘‘. . . the right to life has come to mean the right to enjoy life,—the right to be let alone . . . . This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.’’ The concepts put forth in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice Brandeis regarding the Fourth Amendment. 533 Then, in the 1920’s, at the heyday of economic substantive due process, the Court ruled in two cases which, although nominally involving the protection of property, foreshadowed the rise of the protection of noneconomic interests. In Meyer v. Nebraska, 534 the Court struck down a state law forbidding schools from teaching any modern foreign language to any child who had not successfully finished the eighth grade. Then, two years later, in Pierce v. Society of Sisters, 535 the Court declared it unconstitutional to require public school education of children aged eight to sixteen. The statute in Meyer was found to interfere with the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00094 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1765 536 Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 531, 533, 534 (1928). The Court has subsequently made clear that these cases dealt with ‘‘a complete prohibition of the right to engage in a calling,’’ holding that ‘‘a brief interruption’’ did not constitute a constitutional violation. Conn v. Gabbert, 526 U.S. 286, 292 (1999) (search warrant served on attorney prevented attorney from assisting client appearing before a grand jury). 537 262 U.S. at 399. 538 262 U.S. at 400. 539 268 U.S. at 534-35. 540 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage and procreation are among ‘‘the basic civil rights of man’’); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (care and nurture of children by the family are within ‘‘the private realm of family life which the state cannot enter’’). 541 E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922) (allowing compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (allowing sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of insanity or imbecility); Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270 (1940) (allowing institutionalization of habitual sexual offenders as psychopathic personalities). 542 388 U.S. 1, 12 (1967). values of their properties. 536 Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents and children in the assertion of other noneconomic forms of ‘‘liberty.’’ ‘‘Without doubt,’’ Justice McReynolds said in Meyer, 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.’’ 537 The right of the parents to have their children instructed in a foreign language was ‘‘within the liberty of the [Fourteenth] Amendment.’’ 538 Meyer was then relied on in Pierce to assert that the statute there ‘‘unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’’ 539 Although the Supreme Court continued to define noneconomic liberty broadly in dicta, 540 this new concept was to have little impact for decades. 541 Finally, in 1967, the Court held in Loving v. Virginia 542 that a statute prohibiting interracial marriage denied substantive due process. Marriage was termed ‘‘one of the ‘basic civil rights of man’’’ and a ‘‘fundamental freedom.’’ ‘‘The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,’’ and the classification of marriage rights on a racial basis was VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00095 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1766 AMENDMENT 14—RIGHTS GUARANTEED 543 Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482 (1965), Justice Douglas reinterpreted Meyer and Pierce as having been based on the First Amendment. Note also that in Epperson v. Arkansas, 393 U.S. 97, 105 (1968), and Tinker v. Des Moines School District, 393 U.S. 503, 506–07 (1969), Justice Fortas for the Court approvingly noted the due process basis of Meyer and Pierce while deciding both cases on First Amendment grounds. 544 367 U.S. 497, 522, 539–45 (1961). Justice Douglas, also dissenting, relied on a due process analysis, which began with the texts of the first eight Amendments as the basis of fundamental due process and continued into the ‘‘emanations’’ from this as also protected. Id. at 509. 545 According to Justice Harlan, due process is limited neither to procedural guarantees nor to the rights enumerated in the first eight Amendments of the Bill of Rights, but is rather ‘‘a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions.’’ The liberty protected by the clause ‘‘is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.’’ 367 U.S. at 542, 543. 546 381 U.S. 479 (1965). 547 ‘‘We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.’’ Griswold v. Connecticut, 381 U.S. at 482 (opinion of Court by Justice Douglas). 548 The analysis, while reminiscent of the ‘‘right to privacy’’ first suggested by Warren and Brandeis, still approached the matter in reliance on substantive due process cases. It should be noted that the separate concurrences of Justices Harlan and White were specifically based on substantive due process, 381 U.S. at 499, 502, which indicates that the majority’s position was intended to be something different. Justice Goldberg, on the other hand, in concurrence, would have based the decision >‘unsupportable.’’ Further development of this line of cases was slowed by the expanded application of the Bill of Rights to the states, which afforded the Court an alternative ground to void state policies. 543 Despite the Court’s increasing willingness to overturn state legislation, the basis and standard of review that the Court used to review infringements on ‘‘fundamental freedoms’’ were not always clear. In Poe v. Ullman, 544 for instance, the Court dismissed as non-justiciable a suit challenging a Connecticut statute banning the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process standard of reasonableness—the same lenient standard he would have applied to test economic legislation. 545 Applying a lengthy analysis, Justice Harlan concluded that the statute in question infringed upon a fundamental liberty without the showing of a justification which would support the intrusion. Yet, when the same issue returned to the Court in Griswold v. Connecticut, 546 a majority of the Justices rejected reliance on substantive due process 547 and instead decided it on another basis—that the statute was an invasion of privacy, which was a non-textual ‘‘penumbral’’ right protected by a matrix of constitutional provisions. 548 Not only was VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00096 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1767 on the Ninth Amendment. 381 U.S. at 486-97. See analysis under the Ninth Amendment, ‘‘Rights Retained By the People,’’ supra. 549 See Roe v. Wade, 410 U.S. 113 (1973). 550 When the Court began to extend ‘‘privacy’’ rights to unmarried person through the equal protection clause, it seemed to rely upon a view of rationality and reasonableness not too different from Justice Harlan’s dissent in Poe v. Ullman. Eisenstadt v. Baird, 405 U.S. 438 (1972), is the principal case. See also Stanley v. Illinois, 405 U.S. 645 (1972). 551 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). 552 See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972). ‘‘If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. 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.’’ 405 U.S. at 453. 553 478 U.S. 186 (1986). this right to be protected again governmental intrusion, but there was apparently little or no consideration to be given to what governmental interests might justify such an intrusion upon the marital bedroom. The apparent lack of deference to state interests in Griswold was borne out in the early abortion cases, discussed in detail below, which required the showing of a ‘‘compelling state interest’’ to interfere with a woman’s right to terminate a pregnancy. 549 Yet, in other contexts, the Court appears to have continued to use a ‘‘reasonableness’’ standard. 550 More recently, the Court has complicated the issue further (again in the abortion context) by the addition of yet another standard, ‘‘undue burden.’’ 551 A further problem confronting the Court is how such abstract rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family and procreation in Griswold have been extended by the Court to apply to married and unmarried couples alike. 552 Yet, in Bowers v. Hardwick, 553 the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited the types of intimate activities engaged in by married as well as unmarried couples. The Court interpreted the statute only as applied to the plaintiffs, who were homosexuals, explaining that there was no historical right to engage in homosexual sodomy. The dissent, however, would have evaluated the statute as applied to both homosexual and heterosexual conduct, and thus would have resolved the issue left unanswered by the Court—whether there is a general right to privacy and autonomy in matters of sexual intimacy. VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00097 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1768 AMENDMENT 14—RIGHTS GUARANTEED 554 491 U.S. 110 (1989). Five Justices agreed that a liberty interest was implicated, but the Court ruled that California’s procedures for establishing paternity did not unconstitutionally impinge on that interest. 555 491 U.S. at 128 n.6. 556 491 U.S. at 142. 557 410 U.S. 113, 164 (1973). A companion case was Doe v. Bolton, 410 U.S. 179 (1973). The opinion by Justice Blackman was concurred in by Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Chief Justice Burger. Justices White and Rehnqu

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